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COPYRIGHT DEPOSIT. 



MANUAL 

OF 

POLITICAL ETHICS 

■ DESIGNED CHIEFLY 
FOR THE USE OF COLLEGES AND STUDENTS AT LAW 

Lex, communis reipublicz sponsio.— Sbnbca. 
BY 

FRANCIS LIEBER, LL.D. 

CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, ETC. 

AUTHOR or " OX CIVIL LIBERTY AND SELF-GOVERNMENT," " PRINCIPLES OF 
LEGAL AND POLITICAL INTERPRETATION," ETC., ETC. 

SECOND EDITION REVISED AND EDITED 
BY THEODORE D. WOOLSEY 

WITH AN INTRODUCTION BY NICHOLAS MURRAY BUTLER 
VOL. I 




PHILADELPHIA AND LONDON 

J. B. LIPPINCOTT COMPANY 
191 I 



^vvy 






Entered, according to Act of Congress, in the year 1874, ^7 

MATILDA LIEBER, 
In the Office of the Librarian of Congress at Washington. 



Copyright, 1911, by 
J. B. LippiNCOTT Company 



©CLA28G:j53 



INTRODUCTION 



It is the characteristic of a classic that its value increases 
with age. Lieber's great treatise on Political Ethics is a 
classic, and despite the fact that it was written nearly three- 
quarters of a century ago, its principles, its disquisitions and 
its ideals have immediate application to the political thinking 
and the political action of our own day. Indeed, one might 
well wish that those who aim at political leadership in America 
now, would turn with vigor and devotion to the study of the 
great classics of political science and qualify themselves for 
real success in the efforts they are making by a thorough 
grounding in the principles of political science and of political 
philosophy. There is more to be learned from the pages of 
Burke, of the Federalist, of De Tocqueville, and of Lieber, 
than from the reading of the daily newspaper. 

The shifting forms of democracy have a common purpose 
and rest upon a common foundation. Human experience 
has already been wide and long. Many things have already 
been demonstrated and many fallacies and illusions have al- 
ready been exposed. The ignorant and untutored man keeps 
on trying to repeat, at whatever cost, efforts which the race as 
a whole have long since made and found purposeless or 
futile. If history is philosophy teaching by examples, then 
there must be a philosophy which underlies history. It is 
toward an appreciation and an understanding of this philoso- 
phy that a study of Lieber's Political Ethics will lead. 



Professor Lieber was not only a profound scholar, but he 
was keenly alive to events as they passed, and he left behind 
him a reputation as an admirable teacher. All these qualities 
shine forth from the pages of his Political Ethics. One may 
well wish that the reader of today will take politics seriously 
enough to master this thoughtful, inspiring and illuminating 
exposition of governmental forms, principles and policies. 



Nicholas Murray Butler. 



Columbia University 
January 30, 1911 



PREFACE TO THE SECOND EDITION. 



The Political Ethics, of which the second edition is now 
offered to the public, received very high commendation from 
some of the first men in the United States on its first appear- 
ance in 1838. "Chancellor Kent," says Judge M. Russell 
Thayer, in his discourse delivered before the Historical So- 
ciety of Pennsylvania, " commended it in the strongest terms 
for the excellence of its doctrines and its various and profound 
erudition, and observed, that ' when he read Lieber's works he 
always felt that he had a sure pilot on board, however dan- 
gerous the navigation.' " In a letter to Lieber, Judge Story 
said of it, " It contains by far the fullest and most correct 
development of the true theory of what constitutes the State 
that I have ever seen. It abounds with profound views of 
government, which are illustrated by various learning. To 
me many of the thoughts are new, and as striking as they are 
new. I do not hesitate to say that it constitutes one of the 
best theoretical treatises on the true nature and objects of 
government which have been produced in modern times, con- 
taining much for instruction, much for admonition, and much 
for deep meditation, addressing itself to the wise and virtuous 
of all countries. It solves the question what government is 
best by the answer, illustrated in a thousand ways, that it is 
that which best promotes the substantial interests of the whole 
people of the nation on which it acts. Such a work is pecu- 
liarly important in these times, when so many false theories 
are afloat and so many disturbing doctrines are promulgated." 

3 



4 PREFACE TO THE SECOND EDITION, 

Besides these testimonies from the two first jurists of the 
generation next preceding ours, additional ones from the 
historian Prescott, from Hallam, and others, may be found 
in the discourse of Judge Thayer. 

Dr. Lieber suffered the edition which appeared more than 
thirty-three years before his death to become exhausted, 
without bringing a second before the public. This was not 
owing to the work having been superseded, nor to want 
of interest in the subject, nor to unattractiveness of style 
or method of treatment : on the contrary, it has from its 
copiousness of illustration, and its earnest, somewhat unsci- 
entific manner, a great attraction. But probably Dr. Lieber, 
whose mind was full of literary projects, never found time to 
get the work again ready for the press, or he shrank from the 
tedium of giving it a thorough revision. 

The care of a new edition was intrusted by Dr. Lieber's 
family to the present editor, who will say a word or two on 
the plan according to which he has attempted to discharge his 
ofifice. It was found that a large mass of materials, consist- 
ing of original notes, quotations from other works illustrative 
of the author's positions, and clippings from newspapers con- 
taining public documents, speeches, or other matter thought 
to be important enough for preservation, was pasted into 
a copy of the work. In looking over these materials, the 
editor perceived that much of all this was not intended for 
insertion, but was rather "materiaux pour servir" for a future 
revision. Some of this matter, again, had meanwhile ap- 
peared in a finished shape in the *' Civil Liberty." Very few 
of the author's notes modified his views expressed in the 
work, and might be passed by without serious loss. And now 
came up the question how far it was expedient to increase the 
size of a book already quite large enough for the persons for 



PREFACE TO THE SECOND EDITION. 5 

whose uses it was designed, and in fact, owing to its copious- 
ness and discursiveness, not seldom overflowing its regular 
channel. The attempt has been made to satisfy all practical 
demands by inserting only those notes of Dr. Lieber's which 
were judged to be of primary value or which bore in the way 
of modification or correction upon the text. Sometimes this 
new matter appears in an abridged form ; sometimes part of a 
note is omitted. In all cases these notes are marked in the 
margin by a star accompanying the numeral used for refer- 
ence. The notes in general are put at the foot of the pages 
to which they belong, instead of having their places assigned 
to them, as in the original edition, at the end of the sections. 
A very few notes by the editor show their source by being 
enclosed in brackets. The two volumes are made nearly 
equal in size by incorporating the earlier chapters of the 
second part in the first. 

In the author's preface to the first volume he acknowledges 
the kindness of Mr. George S. Hillard in helping him to carry 
his work through the press, — " a service," he adds, " which 
those especially will know how to appreciate who write in an 
idiom which they have not learned from their mothers* lips.'* 
No aid could have been more valuable; but a swarm of small 
corrections, which needed a responsible editor's eye, still re- 
mained to be made. The editor has not scrupled to make 
them, while he has been inclined to allow some new-coined 
words, and some double forms (like ethic, ethical, monarchic, 
monarchical), to remain uncorrected or unharmonized. The 
citations through the book, so far as they referred to authors 
within the editor's reach, have been verified, and in general 
found to be correct. 

Theodore D. Woolsey. 
New Haven. 



PREFACE TO THE FIRST EDITION. 



The work itself will show the precise branch to which I 
have assigned the name of political ethics : it remains for me 
only to give here the assurance that the second part, contain- 
ing a discussion of those many relations in which a citizen 
finds himself called upon to act, and for which, however im- 
portant, the positive law does not or cannot furnish a suf- 
ficient rule of action, will be offered to the public at the 
beginning of the next year, if I remain in health. 

The present volume forms, as may be conjectured from the 
title, a separate whole of itself, and has for that reason been 
called part first, and not volume first. 

In carrying the work through the press, I have derived 
great advantage from the valuable advice and indefatigable 
kindness of my friend Mr. George S. Hillard, of Boston. 
He has done to me, and, I fondly hope, through me, to the 
public, a service which literary men will know how to appre- 
ciate, especially those who write in an idiom which they have 
not learned from their mothers' lips. 

Columbia, S. C, August, 1838, 



CONTENTS, 



I=>j^I^T I. 



BOOK I. 

ETHICS IN GENERAL; POLITICAL ETHICS IN PARTICULAR. 
CHAPTER L 



PAGX 



Science. — Name and Subject of Ethics. — Sympathy or Fellow-feeling. — 
The Human Intellect. — Thinking, Reflection. — Difference of Mental 
Action in Animals and Man. — Experience of Animals. — Animals . do 
not exchange Labor or Produce. — Instinct. — Combinatory Action of the 
Animal Mind 17 

CHAPTER IL 

Sensuality and Rationality. — Man can determine his own Action — is free. — 
Animal Affection. — Right and Wrong; Ought and Ought not. — Con- 
science. — What it is. — Its Origin. — Locke's Opinion discussed. — Univer- 
sality of Conscience. — Uniformity of Moral Codes and Views. — The 
Thugs and Battas. — Can we explain Man's Moral Character by Sympathy 
alone? 3] 

CHAPTER IIL 

Ethic Character of Man. — How does Conscience act? — Is it alone an Oracle 
or perfect Index ? — Practical Moral Law. — Man's Individuality. — Morality 
founded upon it. — Our Ethic Character is inalienable, hence our Respon- 
sibility likewise. — Ethic Experience and Skill. — Various Ethic Systems , 53 

CHAPTER IV. 

Man, a Being having his own End and Purpose, or an Ens autoteles. — 
Natural Law. — Its only Axiom. — Its Object. — Difference of Natural Law 
and Ethics. — Science of Politics. — Disastrous Consequences of confound- 
ing Natural Law and Politics proper. — Good Faith necessary wherever 
Man acts. — Political Ethics. — Its relation to the other Sciences which 
treat of Man -67 



10 CONTENl'S. 



CHAPTER V. 

FAGS 

Does Political Ethics deserve to be treated separately ? — Can Ethics be 
aj)plied to Politics? — The People at large ought to know their Political 
Duties. — Political Ethics not for the Statesman alone. — Demoralizing 
Effect of a politically debased Society upon the Individual. — Political 
Ethics especially important in Free Countries. — Attempts of Govern- 
ments and Nations to justify Public Crimes, which proves that Men agree 
that public Acts ought to be founded on Ethic Grounds. — Ethics cannot 
be applied to Politics precisely as to Private Relations. — Mere Expedi- 
ency; mere Theory 70 

CHAPTER VI. 

Does Religion or Common Sense dispense with Ethics in Politics? — 
Hume's View of Common Sense. — What is Common Sense? — It does 
not dispense either with a proper Knowledge of Politics and Ethics, or 
with constant Exertion and much Industry 90 



BOOK II. 

THE STATE. 

CHAPTER I. 

The Law is everywhere. — What is Law ? — Sociality. — Origin of the 
Family. — Of Society. — Everything conspires to lead Men to Society. — 
Strong and natural Ties in Family Affection, Language, Division and 
Union of Labor 99 

CHAPTER 11. 

Property. — Mine and Thine. — Origin of Property, — Various Titles. — Indi- 
vidual Property is necessary for Man. — Does not arise from Man's 
Iniquity. — Man never lives or can live without Property. — Slow Devel- 
opment of Property. — International Acknowledgment. — Copyright. — 
Property among Agriculturists. — Civilization and Population depend 
upon it 108 

CHAPTER IIL 

Civilization. — What does it consist of? — Requires Society. — It develops 
Man, is his truly Natural State. — Futile Dreams of Innocence and Vir- 
tue without Civilization. — Shepherds are savage. — Destiny of Woman. 
— High Importance and Sacred Character of the Family. — Virtues 
developed by it. — The true Nursery of Patriotism . . . .127 



CONTENTS. II 



CHAPTER IV. 

PAGB 

What is the State? — By what Characteristics does it differ from the Family? 
— The State a Society. — Various Human Societies, according to the 
various Relations. — Relations of Consanguinity, Exchange, Comity, 
Intellectual Communion, of Right. — What is Right? — The State is the 
Society of Right. — The Just is its Fundamental Idea. — Objects of the 
State. — What is Protection? — The State requires General Rules; its 
Members are not absorbed by it ; every one has Claims upon it ; it is a 
Moral Society; it exists of Necessity. — The State remains a Means. — 
The Individual above the State; the State above the Individual. — The 
State, as such, has Rights and Obligations; the State does not make 
Rights, but acknowledges them. — Civilized States far the most power- 
ful. — Man by Nature a Political Being. — Man never exists without the 
State. — The State is no Insurance Company. — Protection of Life and 
Property not the only Objects, nor the highest 14J5 

CHAPTER V. 

Legitimate Objects of the State. — Danger of Intermeddling Legislation; 
Instances. — Primordial Rights and Claims. — Physical Life and Health. 
— Law of Necessity. — Personal Liberty. — Right of Individuality; no 
Absolute Obedience possible. — Right of vShare in the Protection of the 
State. — Jural Reciprocity. — Right to be judged by Laws, and Laws only. 
— Right of Communion or Utterance. — Liberty of the Press. — Right of 
Morality. — Immoral Laws, no Laws. — Right of Honor, Reputation. — 
Family. — Religion, Creed, Worship. — Right of Property, Acquisition, 
Exchange. — Right of Emigration. — Inalienable Rights. — State cannot 
take Revenge; the Crown cannot feel Wrath. — Political Absurdity of 
speaking of King's Anger or Nation's Revenge as Political Body . • I7> 

CHAPTER VL 

The State necessarily comprises all. — No one can declare himself out of 
it ; no one can be considered out of it. — Different Meanings attached to 
the word State at different Periods. — Mankind divided into many States. 
— Why? — Sovereignty. — Definition.— There were never individual Sov- 
ereigns before the Formation of the State. — Who is the Sovereign? — 
Manifestations of Sovereignty. — Public Opinion, Generation of Law, 
Power. — Public Opinion. — Law : what does it consist of? — Public Will. 
— Nature, Common Sense, Custom and Usage, Common Law, Charters, 
Codes and Statute Law, Decisions, Precedents, Interpretation, Authentic 
Interpretation, Digests. — Judge-made Law, so called. — Power rests with 
Society, cannot rest anywhere else. — Govei-nment, what it is. — Various 
Kinds of Governments as to their Origin. — Always rest on Opinion. — 
Importance of distinguishing State, Government, Sovereignty, Supreme 



12 CONTENTS, 

FAGB 

Power. — Divine Right. — Monarchs called of God. — Frederic's and Jo- 
seph's View. — No Monarch ever was or can be Sovereign in the true 
Sense. — Meaning of the word Sovereign if used of the British Mon- 
arch. — Declaration of Rights. — True Relation of Monarch and People. 
— Can the King really do no Wrong, constitutionally or legally? — 
He can do so, and it has been decided that he can. — British Monarch 
the Fountain of Honor. — Its Meaning. — Different Title of Monarchs; 
some of the Land, some of the People 210 

CHAPTER VII. 

Public Power. — Why necessary. — Why must it be restrained ? — Abuse of 
Power general. — Man justly loves to act, to produce, to effect something. 
— It is the inherent Character of all Power to increase if unchecked. — 
Power delights, and is not willingly given up. — Power, in all Men and 
all Spheres, is irritated at Opposition. — Man judges according to his Posi- 
tion, those in Power differently from those out of it. — Power is in its 
Character imposing 264 

CHAPTER VIII. 

Legitimacy of Governments. — Governments de jure, de facto, — 'Divine 
Right. — Legitimacy of Governments with Reference to International 
Intercourse. — Can the Legitimacy of Government be ascertained by its 
Origin? — Filmer, Locke, Rousseau, Haller. — The Origin of all States 
essentially the same ; yet Infinity of Circumstances which influence and 
modify its Development. — Ancient View on the Origin of Governments. 
— Aristotle, Polybius. — Various Theories. — Social Contract. — Various 
Facta. — Hobbes, his Error. — Theocratic Theory 275 

CHAPTER IX. 

View of the Origin and Character of the State in the Middle Ages. — 
Dante. — Thomas More. — Bodinus. — The Netherlands first proclaim 
broadly that Monarchs are for the Benefit of the People, and may be 
deposed. — The Development of the Idea of the Sovereignty of the 
People owing to the Jesuits.. — William Allen. — Persons. — Bellarmin. 
—Jesuits defend Regicide under certain Circumstances. — Mariana. — 
Suarez. — Luther. — Calvin. — Bacon. — English Revolution a great Period 
for liberal Ideas in Politics. — Puffendorf. — Leibnitz. — Montesquieu.- — 
Hume. — Quesnay. — Turgot and Malherbes. — Mably. — Adam Smith.- — 
Blackstone. — Delolme. — Bentham. — Hallam. — Revolution of 1830 . 297 

CHAPTER X. 

Various Standards of great Political Periods. — The Government must de- 
pend upon given Circumstances and Materials. — Which is the best Gov- 
ernment ? — Errors as to an Ideal Government. — Governments cannot 



CONTENTS, 



13 



be made in the Closet, or decreed. — Characteristics of a good Govern- 
ment. — Civil Liberty. — What it is. — Errors respecting it. — Majority and 
Minority. — The Majority are not the People. — The Athenians checked 
their own Power. — Great and true Value of Representative Government. 
—Whoever has the Power, One, Many, or the Majority, may abuse it, 
and must be checked " 310 

CHAPTER XL 

Political Atony one of the greatest Evils. — The Ancient Tyrannies. — 
Variety of Means to check the Abuse of Power. — Can Power be con- 
trolled ? — Who controls the controlling Power ? — Constitutions. — Are 
written Constitutions of any Value ? — Constitutions are Indispensable. 
— Various Reasons why and Circumstances when Written Constitutions 
are desirable or necessary. — Division of Power: Legislative, Executive, 
and Judiciary. — Great Danger resulting from Confusion of these 
Branches, in Republics as much as in Monarchies. — Importance of the 
Separation of the Executive from the Legislature. — Vast Importance of 
an Independent Judiciary. — What does Independent Judiciary mean ? 
— The farther Political Civilization advances, the more independent does 
the Judiciary become J34 

CHAPTER XII. 

Classification of Greek Constitutions by Aristotle. — Classification of Gov- 
ernments according to the Number of those who hold the Supreme Power. 
— Polity : Meaning in which it is used in the Present Work. — Autarchic 
and Hamacratic Polities, — Autarchy, Hamarchy. — Absolutism. — Demo- 
cratic Absolutism. — Different Operation in the Autarchy and Hamarchy. 
— Hamarchy materially republican in its Character. — The Polity of 
England is a Hamarchy. — The Polity of the United States likewise. — 
Hamacratic Character of the City of Rome. — Hamarchy rises with the 
Teutonic Race. — Anglican Hamarchy . . . . , , '351 

CHAPTER XIII. 

Political Spirit of the Ancients. — The Ancients had not what we call Law 
of Nature. — Essential Difference between the View of the State taken 
by the Ancients and the Moderns. — Greek Meaning of Liberty ; absolute 
Equality, even disavowing the Inequality of Talent and Virtue. — Protec- 
tion of the Individual, first object of the Moderns; the Existence of the 
State, of the Ancients : hence high Importance of Judicial Forms with 
the Moderns. — He who has Supreme Power, be it One, Many, or All, 
must not sit in Judgment. — Greek Laws often very oppressive to the 
Individual. — The most private Affairs frequently interfered with. — 
Socrates' View of the State. — Lavalette, Hugo Grotius, and Lord John 
Russell, on the other hand. — Ostracism. — Causes of the powerful 
Change in the View of the State. — Christianity. — Conquest of the 



14 CONTENTS, 

PAGB 

Roman Empire by Teutonic Tribes. — Feudalism. — Increased Extent of 
States. — Printing. — Increased Wants of Government. — Taxation. — Rise 
of the Third Estate. — Increased Industry. — Discovery of America , 358 



BOOK III. 

POLITICAL ETHICS PROPER. 

CHAPTER L 

Reciprocal Relation of Right and Obligation. — The more Liberty, the 
more Rights, hence the more Obligations. — Danger of Absolutism in 
Republics, without due Attention to Political Ethics. — Additional Rea- 
son of their Importance derived from our Race. — Another Reason, 
from the Period in which we live and the Direction which the Study of 
Political Sciences of late has taken. — Private Morality necessary for 
Public Success, especially in Free States, yet not sufficient. — Justice 
and Fortitude or Perseverance chief Virtues in Political Life. — Justice 
the Basis of the other Virtues. — Reputation of Individuals and States 
chiefly founded upon it. — Power and Passion equally apt to blind against 
Justice. — Justice affords Power. — Coteries are unjust because they see 
distortedly. — May we do what the Law either positively, or by not pro- 
hibiting, permits ? . 383 

CHAPTER IL 

Perseverance. — Justus et tenax. — Necessity and great Effects of Perse- 
.verance. — To persevere, our Purpose ought to be good, the Means 
adapted to the Purpose and the Purpose to the Means ; the Means 
concentrated. — Repeated Action may supply Power ; undaunted Perse- 
verance may finally decide by a Trifle. — Fortitude. — Alarmists. — Ex- 
citement and Injustice. — Rabies civica. — Calmness of Soul. — Political 
Fretfulness, — Great Souls are calm. — Peevishness. — Political Grum- 
blers (Frondeurs). — Chief Points respecting Firmness. — Consistency. 
—Inconsistency. — Obstinacy 412 

CHAPTER IIL 

Hoderation. — Excitement.- — Passion. — Revenge. — Obscuration of Judg- 
ment by Excitement. — Honesty. — Veracity. — Kant's Opinion.- — Hon- 
esty in Money Matters. — Desire of Wealth. — Love of Independence. — 
Poverty; its Effect on Public Men in ancient and in modern Times. 
— Necessity of being free from Debt. — Liberality. — Peculation. — Bane 
of Public Covetousness. — Public Defaulters, — Periods of Speculation. — 
Smuggling 438 



PART I. 



ETHICS GENERAL AND POLITICAL. 



!S 



POLITICAL ETHICS. 



BOOK I. 

ETHICS IN GENERAL; POLITICAL ETHICS IN PARTICULAR. 
CHAPTER I. 

Science. — Name and Subject of Ethics. — Sympathy or Fellow-feeling. — The 
Human Intellect. — Thinking, Reflection. — Difference of Mental Action in 
Animals and Man. — Experience of Animals. — Animals do not exchange 
Labor or Produce. — Instinct. — Combinatory Action of the Animal Mind. 

I. A SCIENCE is a branch of knowledge or collection of ideas 
systematically developed according to principles peculiar to 
the subject-matter itself A science is independent within 
its own sphere. Everything is worthy of being scientifically 
investigated, that is, worthy of being investigated as to its 
essentials, separately and for itself, with the view of arriving 
at principles and laws. Every principle and law thus arrived 
at extends the sphere of knowledge, expands the human mind, 
increases the stock of civilization, and is emphatically useful. 
We are uselessly employed when occupying ourselves with 
accidentals ; usefully, when with the essentials of things, i.e. 
with their nature, that which makes them what they are. 
This constitutes the difference between idle curiosity or a 
pedantic accumulation of facts, and scientific inquiry — that 
noble employment of man.^ Whether we are worthily occu- 

» A person in England has counted how often the word And occurs in the 
Bible. Yet facts ascertained by mere curiosity may be used by others for higher 
purposes : for instance, in this case, if a scholar were desirous of showing how 
late children or nations free themselves, in using prose, from a continual re- 

2 17 



1 8 ETHICS IN GENERAL. 

pied does not depend, in an abstract point of view, upon the 
subject we inquire into, but upon the mode and object of 
inquiry; yet it may depend upon the subject relatively to 
other important considerations. Whether the subject be 
mind or matter ; the soul, thought, appetites, the organs or 
the size of man;' the laws of nature or society, truth, error, 
or fiction ; things as they are or the changes through which 
they have become such — everything may be scientifically in- 
vestigated, is worthy of being so, and contributes essentially 
to our knowledge of the nature of things, their connection, 
their order, and the Being that prescribed it. 

II. That science which treats of what is good, noble, and 
meet, wise and right, because it is good,^ as well as the 
opposite of these, of the origin of our notions of the good 
noble, and meet, the peculiar nature of man, without which he 
could not have had these notions, and his consequent essential 
attributes, the duties flowing from these attributes, and the 
relations necessarily founded upon our knowledge of the good 
— that science is called ethics or morals. Ethics constitutes 
a science, which treats of our moral character; of the good 
as an idea within us, and its application to our appetites and 
impulses, dispositions, actions, and habits. The former — the 
good as an idea within us and man's moral nature — forms the 
subject of the metaphysical or strictly philosophical part of 
ethics ; the latter, its application to our natural dispositions 



currence to the conjunction And. So may scientific minds make proper use of 
facts collected for very different purposes : for instance, when Hippocrates 
studied the votive tablets in the Grecian temples, containing a brief description 
of diseases and the remedies, believed to have effected the cure, for which the 
grateful convalescent dedicated the table to the deity by whose assistance he sup- 
posed himself to have recovered ; and when he laid upon this study and his own 
observation the foundation upon which the science of medicine mainly rests to 
this day, 

* As Mr. Qu^telet, of Brussels, has published very interesting and important 
inquiries upon this subject. 

« Section xxix., chap. iv. of Book I. explains why I have said " right because 
it is good." 



SCIENCE. 



19 



and the various relations between man and man, belongs to 
the province of applied or practical ethics, called likewise, by- 
some, the science of duties and virtues.' 



* Dodrina de Officiis ; e.g. Cicero, De Officiis. The Germans have Pflichten- 
lehre (Doctrine of duties), and Tugendlehre (Doctrine of virtues). 

Etymology. Words which designate a cause, principle, something general or 
abstract, have, in almost all cases, designated at an earlier period some effect, 
something specific or real. The mind proceeds from the concrete to the abstract, 
and then returns from the abstract to the concrete. The effect strkes the mind 
at once ; the cause is arrived at by reflection. We observe the same process 
respecting the signification of the words ethics and morals. 

Ethics is derived from the Greek word rj^iKog, moral, from b&og, custom, and 
^of, the accustomed dwelling, home. Plato de Legg. 7 : ndv 7j-&o^ diet £i5of. 
Aristotle derives it in various places in his Ethics from ii^og. The word jj^dog 
means — first, dwelling, home; secondly, that which is customary there, among 
men who have homes, among civilized beings ; thirdly, habit ; and lastly, the 
expression of our affections. "Ed^og means always custom, usage, manners — that 
which has been settled among men as custom, that on which men agree that it is 
proper, propriety, to which the ideas of decorum, of what is right, what ought to 
be done, are closely related. At a later period man reflected on what was really 
general custom, what is essential in it, and what merely accidental, and why it 
is and ought to be so, or whether it ought to be different. The word idog, the 
seat, chair, basis, also dwelling, especially of the gods, belongs likewise to this 
family of words, as the Latin solum soil, and solere, are connected, the first signi- 
fying that which has settled, is firm, the latter indicating a settled disposition, a 
bein^ in the habit of doing a thing. The idea of something settled, stable — rest- 
ing, therefore, on some general principle, for settling does not mean here an 
arbitrary agreement upon some fashion, but a custom which has become settled, 
tacitly and gradually so — is then to be found in all words connected with that 
of ethics, as is also the case with the corresponding words in the Teutonic 
languages. 'Ei^of in German is Sitte, a word closely related to the words Sitz, 
in English seat (which signifies both in German and in English also a dwelling- 
place, as, a country-seat, the seat of a tribe), Gesetz, the German for Law, that 
which has been settled, as the English law is connected with the verb to lay^ 
that which has been laid down ; Satzung, an ordained and well-established law. 
In Low German one of the meanings of the word setten is to ordain, and sate is 
ordinance, law. See a Dictionary of the Low Saxon Dialect, Bremen, 1770, 
under the words setten and sate. [So wohnen and gewohnen, German, won 
and wont, English, are cognates.] 

Sitte is an ancient Teutonic word. Situ, Sidde, Sid, are used in earliest times ; 
in Anglo-Saxon Sida, Sitha, in Swedish Sed, in Icelandic Sidr. Sittlich in 
German means moral ; Sittenlehre, the science of that which is sittlich, ethics ; 
gesittet denotes the behavior which is the effect of Sittlichkeit, i.e. morality. 

The word morals is derived from the Latin moralise which was first introduced 



20 ETHICS IN GENERAL, 

Taking a popular view of all sciences, we may comprehend 
them within two classes, namely : sciences which teach what 
is or has been, such as natural philosophy, natural history, 
statistics, geography, the philosophy of the mind, mathe- 
matics, civil history, etc. ; or what ought to be — the subject of 
the moral sciences. This ought to be would have no meaning, 
wherever it applies to anything not wholly belonging to the 
physical world, were there not some actions which we cannot 
but consider as good, and others as evil, were man not a 
moral being, had he not a moral character, as soon and as 
long as he is master of his actions. Man is responsible for 
what he does. 

III. Why is man responsible ? Why is he accountable foi 
what he does ? — Because he has an essentially ethic character. 
What is this? in what does it consist? 

It belongs to the province of ethics proper to furnish us 
with satisfactory answers and proofs as to the questions just 
made ; but a clear and distinct understanding of some points 
involved in these answers is so necessary for a correct solution 
of numerous questions to be discussed in the course of this 
work, that it will be necessary to pay some attention to them 
here. 

In the first place, the physiologist shows the superiority of 
the human organization, its various functions, and all that is 
connected with the animal life of man, over those of the rest 
of the animate creation. This subject forms one of the most 
interesting results of comparative anatomy and physiology. 

IV. Man is endowed with sympathy or fellow-feeling, i.e. 
a feeling for the pains and pleasures of others, though uncon- 



by Cicero, de Fato, i. I : Nos enim partem philosophiae de moribus appellare 
solemus, sed decet, augentem latinam linguam, nominare moralem. Moralisy 
therefore, is derived from mores, very similar in its meaning to ^of , signifying, in 
its widest application, according to Quintilian, omnes habitus mentis. Seneca 
(Ep. 89) says that philosophy is divided by most people into philosophia moralise 
naturalis, and rationalis. 



SYMPATHY OR FELLOW-FEELING. 2 1 

nected with any interest of his own, or standing in no direct 
connection with him, even by way of fear for his own future 
protection ; and with a peculiarly expansive feeling of attach- 
ment. The latter, an element of the greatest importance in 
everything at all connected with man's social state — and what 
is not? — is reducible to the first, or, if it be preferred, is a 
species of sympathy peculiarly developed, so that I feel justi- 
fied in comprehending it under this head. The existence of the 
family, love of country, public spirit, devotion to our family, 
fellow-citizens, or species, disinterestedness, love, charity, 
friendship, the fine arts, the existence of the state, and what- 
ever is noblest and best in man, is, in part or wholly, founded 
upon this great element of the human soul. Fellow-feeling, 
being an elementary attribute of our soul, cannot be proved 
otherwise than by our consciousness of it, and its effects 
being observable everywhere. Were a man to deny his being 
or ever having been conscious of any fellow-feeling, of ever 
having suffered except in consequence of injury done directly 
to himself, or having felt pleasure except as an effect of bene- 
fits done to himself; and were he farther to assert that he sees 
the effect of sympathy nowhere around him ; it would be im- 
possible to demonstrate its existence to him, any more than 
the existence of the sense of sight to any one who would 
boldly deny our direct and absolute consciousness of its ex- 
istence and the consequent perceptions of colors. 

The denial of this feeling as an essential and original attri- 
bute of the human soul, on the ground that we do not discover 
it with the lowest beings of the human race, is unfounded ; 
for, first of all, we do actually find it with individuals to 
whatever tribe they may belong, or in whatever degree of 
civilization they may stand, though we may observe it only in 
its incipient stages, and it may, indeed, not manifest itself in 
many cases, in which individuals of the society we live in would 
show it in a strong degree. We shall have to treat at some 
length of the capital error into which numerous philosophers 
have fallen, to the perversion of truth, in supposing that that 
only is natural in man which, according to their presumption, 



22 ETHICS IN GENERAL. 

is to be found in a supposed primitive stage of human society'". 
Suffice it here to say that nothing can be more fallacious and 
subversive of all truth than the supposition that man's nature, 
be it intellectual, moral, or physical, can be found out best, or 
only, by observing him in what is supposed to be his state of 
nature, and a confusion of this supposed natural state with the 
state of savageness. 

V. Nor can sympathy be denied to constitute an essential 
attribute of the ethic character of man, on the ground that we 
may discover it in animals likewise. We observe, indeed, in 
animals a feeling which forms in ourselves one of the in- 
cipient stages of sympathy ; the anxiety of the parent for its 
offspring ; with some animals the protection afforded by the 
male to the female, and with other species a decided dispo- 
sition for living socially together. But how limited as to 
time and individuals is this feeling even with those species of 
the brute creation which rank highest in the animal scale, and 
in how many cases can we distinctly refer it to an impulse of 
nature, to instinct, with which it stops short, or to a mere 
feeling of common danger. The wild hogs are known to be 
peculiarly sensitive to common danger. If one be attacked, 
it will attract the rest of the herd by its violent cries, and all 
will resolutely attack the enemy. Yet this very animal is 
peculiarly prone to destroy its own offspring. The hen, which 
but a moment ago was the image of maternal solicitude, when 
the hawk was hovering over her brood, betrays no symptom 
of grief when she sees two or three of her chickens carelessly 
trampled to death by herself The most striking instances of 
animal sympathy on record are, perhaps, those where animals 
of different species had so accustomed themselves to each 
other that the removal or death of the one caused the other 
to pine away ; as, for instance, in the case of the dog and 
lion in the Garden of Plants at Paris. The Chinese rice- bird, 
when in a cage, will die when its mate is removed. Yet how 
limited is this, the highest instance of animal desire for the 
company of another, compared to the expanded sympathy of 



SYMPATHY OR FELLOW-FEELING. 23 

man — sympathy which is founded, as we characterized it, on 
a feeling for another individual unconnected with our own 
interest. 

Some writers have acknowledged the existence of sym- 
pathy, indeed, but reduced it to self-interest, to egotism. It is 
the office of ethics to refute this doctrine, which, were it 
established, would destroy the basis of nearly all that is good, 
noble, or worth living, laboring, and striving for. It does not 
lie within the province of the present work to undertake this 
task ; we will decide it in a practical way, only by asking, Are 
you a brother, or a son, or a friend ? Have you ever seen a 
venerable old man insulted by a wanton youth ? Have you 
never read the last farewell of Socrates? Does it not make 
you feel elevated and yet pained when you hear that Spinoza 
gave up his inheritance, small yet sufficient for his modest 
wants, rather than have a v/ord of dispute with his sister, and 
that in consequence he had to work as glass-grinder in the 
daytime, that he might follow at night his profound studies ? 
Did you feel nothing when you heard of the noble Poles who 
were torn from their families and sent to Siberia for having 
loved their country, and whose children were taken far into 
the interior of Russia? Have you never perused with satisfac- 
tion a vindication of a person against whom grave and plausi- 
ble charges had been brought ? Have you ever heard of the 
delight which burst from the lips of the ancient mathematician, 
in the words " I have found it," when he at length had solved 
the great problem, and felt the whole magnitude of his dis- 
covery for thousands of generations yet unborn ? Has the 
perseverance of Columbus never reached your ears ? And 
have you heard of these things without feeling joy or pain? 
Has no drama ever touched you ? On what, indeed, is nearly 
the whole literature of belles-lettres founded, if not on sym- 
pathy — sympathy even with fictitious beings ? Who peruses 
without emotion the agony of poor Jeanie in Scott's Heart of 
Mid-Lothian, when she is forced to testify against her sister, — 
the overwhelming joy when she has obtained the king's par- 
don for Effie ? How many millions after millions have been 



24 



ETHICS IN GENERAL. 



touched by the return of Ulysses to his servants, son, and 
wife ! How many thousands have felt sorrow at the sorrows 
of Juliet and Romeo, — joy at the joy of Robinson Crusoe 
when he finds Friday ! How can all this be accounted for by 
egotism ? 

VI. Man is endowed with intellect, the faculty of reflection. 

Thinking begins with the perception of effects produced on 
our external senses, as well as of certain changes produced 
within ourselves. The mind then proceeds to the reproduc- 
tion within us of that which we have perceived, or, in other 
words, of impressions. The faculties necessary for the im- 
portant process by which we endeavor to know and under- 
stand the perceptions and the functions of the mind, performing 
this process, form, perhaps, that which more strictly is called 
the human intellect. Man analyzes total impressions, that is, 
impressions produced by an object considered as an entire 
and undivided whole, compares the simple qualities, thus dis • 
covered, with others obtained by the analysis of other total 
impressions, and reduces them to generic or general ideas 
(the process of generalization). He combines these again and 
draws conclusions (he reasons). Man analyzes, compares, 
combines, abstracts, concludes, and judges; he arrives at the 
ideas of truth and fallacy ; he separates, and arrives at the 
causes of effects ; he combines, and elevates himself above the 
sensible world. It is thus alone, for instance, that he acknowl- 
edges himself as the citizen of a state. 

It has been maintained that, though there be a great dif- 
ference between the capacities of man and the thinking of 
animals, yet the difference is not in the kind, but merely in the 
degree, and that the mental powers of the highest animal 
approach so closely to those of the lowest man that in fact it 
may be said there is no essential difference, but merely a 
gradual transition, and that therefore no conclusion, important 
in an ethic point of view, can be drawn from this difference. 

This objection may be answered thus. First, whether the 
existing state of mind of the lowest man approaches very 



MENTAL ACTION IN ANIMALS AND MAN, 25 

closely to the intellect of the highest animal, or sinks even 
below its level, is not the important point to be discussed. 
The question is. Can the low intellect of man be raised and 
developed, or not, and is the mind of the animal which ap- 
proaches to that of the lowest man, in its highest manifesta- 
tion ? Everything else is accidental, not essential. The eyes 
of a new-born eagle may be weaker, and, considered in their 
actual state, more defective organs of sight, than perhaps those 
of a mole. Yet the ^y^?, of the eagle are far superior, and 
differ strongly in their organization from those of a mole. 

Secondly, I believe we do not venture too far in considering 
it as a settled truth that the mental activity of the animal, 
which it undoubtedly possesses, does not elevate itself above 
some of the most elementary combinations of impressions 
received through the senses — combinations which the mind 
of the brute performs without consciousness. We ourselves 
perform numerous combinatory processes without conscious- 
ness of the performance, e.g. when we avoid a disagreeable 
disturbance, which we have repeatedly met with, on our usual 
walk, by taking a different direction, and become conscious of 
the cause only after we have been reminded of our change by 
the fact of having chosen already a different walk. The animal 
undoubtedly thinks, but man reflects. "A mule," says Fred- 
eric the Great, in his Considerations on the Manner of Waging 
War with Austria (1758), "though it might have made ten 
campaigns under Prince Eugene, would not become for all 
that a better tactician." Man reflects upon his re'^ection ; 
thinks on his thoughts ; makes the mind itself the subject of 
its inquiry. The animal can do no such thing. If it could, it 
would speak ; for though its organs of speech may not be so 
favorably formed for the expression of a great variety of tones 
and accents, as the high-arched palate, the peculiar construc- 
tion of the windpipe, the peculiarly movable lips, and the 
many other organs of man which contribute to the variety, 
pliability, and beauty of language, yet there are many animals 
which possess a scale of tones, even now uncultivated as they 
are, sufficient to become the basis of articulate communica- 



26 ETHICS IN GENERAL. 

tion. It is not because the animals have no perfect organs of 
speech that they have no language, as Anaxagoras said that 
animals would be men had they but hands ; but they have no 
language because they have not the ideas to be expressed. I 
doubt not but that some of the most intelligent animals feel 
at times a degree of that unspeakable pain which man suffers 
when language forsakes him and his soul is anxious to express 
more than words can convey. I believe that I have observed 
this painful effect of a struggle between the mind and means 
of utterance in a dog, which was anxious to communicate a 
serious accident and yet did not succeed in doing so for a long 
time. But this proves nothing against the position just taken. 
We observe the same pain in children. Did this pain always 
press upon the mind of the dog, the means of utterance would 
finally be raised to the wants of the mind, of whatever com- 
pound of sounds and signs this utterance should consist. It 
is the want of thought which makes the brute the " mute 
creation." William Humboldt sdiys/'Tho^ inteittion and the 
capacity of expressing something, and not only a general one^ 
but the distinct one of representing something thought, is the 
only thing which characterizes the articulate sound ; and 
nothing else can be fixed upon to designate its diflference from 
the animal cry on the one hand, or the musical tone on the 
other." ^ 

I am aware that there existed formerly a ready way of 
accounting for many intellectual phenomena in the brute 
world, by ascribing them simply to instinct. This is not 
accounting for the phenomenon. First the superiority of man 
was said to exist in his acting by reason, while the animal 
acts by instinct; and when phenomena were cited which 
showed undeniable traces of combinatory powers, and which 
would have contradicted this dictum, it was said, these phe- 



^ On the Kawi Language on the Island of Java, etc., vol. i. (in German), Ber- 
lin, 1836, page 2>'^ of the Introd. on the Diversity of the Organization of Human 
Languages. The whole in the Transactions of the Royal Academy of Sciences 
at Berlin for the year 1832, vol. ii. 



EXPERIENCE IN ANIMALS. 



27 



nomena must be explained by instinct, because animals have 
nothing else to guide them. With this argument in a circle 
many seemed to be satisfied. It can, however, undeniably be 
proved that, in some cases, animals act not because impelled 
by instinct, but in consequence of mental action within them, 
though it may be, and most probably is, unconscious to them. 
Ask any hunter whether some pointers think or not. 

VII. Yet though this mental action in the brute animal is 
allowed — and some instances will be given directly — there is 
still a line which very distinctly marks, even in a popular 
point of view, the difference between man and brute. 

I. Man gathers experience and transmits it from genera- 
tion to generation, conscious of its being experience and thus 
capable of receiving new additions. The animal improves 
likewise by experience ; we find around us daily proofs of 
this fact. All drilling, which does not produce a new habit, 
is founded upon it. Animals entirely change their hibits in 
different countries, and acquire gradually a facility in pro- 
tecting themselves against the inclemency of weather or in 
procuring food. Young animals learn from the old ones, and 
what thus appears to many, at first glance, to be instinct, i.e. 
a primitive and direct impulse of nature, will be found, on 
closer examination, to be the effect of experience. The most 
timid animals, in parts of the world which had never been 
visited by intruders, showed no fear at their first approach. 
The birds or seals on the solitary islets in the Pacific show 
no apprehension of any danger, no shyness, when first at- 
tacked ; but they acquire it as soon as they know the char- 
acter of their pursuers. Whether the beaver builds its curious 
hut because it cannot resist an impulse entirely independent 
upon its volition, as the bee, for instance, forms its regular 
cell, or whether this species has formed its architecture by a 
stock of common experience gradually acquired, might be 
tested by observation ; but this seems certain, that knowledge 
—and experience is a species of knowledge — is transmitted 
in animals by mere imitation, and remains within a very 



28 ETHICS IN GENERAL, 

limited circle, even with the most favored animals; while 
man improves it infinitely. The beavers of North America 
build to-day as they were found the day when the first white 
men settled on the Western continent. There is likewise a 
greater uniformity in the actions of animals in different parts 
of the world; the natural impulses, though acted upon by 
experience, seem therefore to be more prominent. 

2. There is foresight in animals, and yet their foresight 
differs from that of man, even of the lowest grade, by a marked 
characteristic. The beaver builds very cunningly his dams 
at a great distance from his lodge, following entirely the 
necessity arising out of the shape and current of the river. 
Animals collect stores for the winter, build bridges, prepare 
for battles, concert upon plans to decoy, entrap, or otherwise 
to catch their prey, endeavor to mislead the disturber of their 
young ones or the enemy of their females, wait for favorable 
winds, observe a fixed order in travelling, relieve each other 
in the performance of laborious tasks, change their nests ac- 
cording to a change of circumstances, observe in some cases 
a certain degree of division of labor (as is the case with the 
beavers); the fox resorts to a series of actions having distinct 
reference to one another, in order finally to arrive at his ob- 
ject : indeed, very many things done by animals indicate fore- 
sight, or a faculty to combine received impressions. But there 
exists, as far as I know, no solitary instance of exchange 
among animals, or of anything that could be fairly considered 
as approaching it. The animal elevates itself in no case to 
any exchange of labor or produce, of which a certain degree 
exists among all men, the very lowest Hottentot or the most 
barbarous South-Sea Islander not excepted. There is no 
human tribe known which has not risen to this incipient 
stage of all civilization, however impeded its farther progress 
may be by constant disturbances, such as incessant warfare, 
the permanence of savage habits, famine, or disease. Even 
the most brutish Pelew Islander will willingly part with the 
fish which he has caught, for a piece of iron. So common 
an act of man is the exchange of articles and of labor, en- 



EXCHANGE, PECULIAR TO MAN. 



29 



grossing so much of his attention, and so large a number of 
all human actions in common life consist in exchanging, that 
in German the word acting means carrying on trade, and 
action a commercial house. Yet the etymology of the Ger- 
man word indicates nothing of the kind ; for handeln (etymo- 
logically the same with the English to handle) is derived from 
Hand, and means, still, acting, because our visible actions are 
chiefly performed with the hands. 

VIII. It is not necessary for the present purpose to ascer- 
tain when the animal acts, simply impelled by instinct or not. 
If it be shown that in many cases the brute thinks, it suffices 
for our purpose, which, in this particular case, is to prove on 
the one hand that it is an erroneous notion, and, I believe, 
one unworthy of the Creator, to imagine that the whole brute 
creation moves and acts in no other way than the dissolved 
chemical elements of some body when they crystallize ; on 
the other hand, that it is equally erroneous to deny any essen- 
tial difference in the thinking of the animal and that of man. 
If a bird builds its nest for the first time, we cannot suppose 
that it has retained during the whole time it was living singly, 
a recollection of its parental nest, or that any idea of the fact 
that at the proper season it will have young ones in its turn, 
and that it ought, consequently, to provide for them before- 
hand, has been imparted to it by any other individual of its 
species. This would necessarily indicate operations of the 
mind, which we entirely miss where we should certainly 
expect them soonest. But if, on the other hand, a rising 
freshet threatens to reach the nest of a granivorous bird, built 
in a hedge, and the bird hastily builds a temporary nest in a 
safer place, and carries, against its natural disposition, and 
contrary to the common use for which the beak is formed, 
its young with care from the endangered spot to the new nest, 
we cannot possibly explain it by instinct, if this word is meant 
to express any definite idea. When the land-crabs of the 
West Indies sally forth, at the proper season, in long proces- 
sion from the interior mountains and proceed in as straight a 



30 



ETHICS IN GENERAL. 



line as possible to the sea-shore, to deposit their eggs and 
shed their shell, and then return in the same order, we can 
hardly bring ourselves to consider these movements in so low 
an animal to be the effect of experience and thinking. Take, 
on the other hand, a Newfoundland dog, which, as is common 
with dogs, took great pleasure in walking with his master. 
He soon found out that the act of taking hat and gloves, or 
of merely putting aside books and papers, at certain times of 
the day, was an indication of the master's intention of going 
out, and he expressed his anticipation of pleasure by manifest 
signs. Several times, however, the dog had been sent home, 
as his company could not always be convenient to the mas- 
ter. The consequence was that the dog would take good 
care not to show that he expected to leave the house, but 
he would slyly steal out of the room, as soon as he thought 
that any indications of a walk had been given, and wait at a 
certain corner which the master had to pass daily, and which 
was at a considerable distance from home. Surely this indi- 
cates some operation of the mind, not to be accounted for by 
instinct.' 



* The above instance has not been mentioned because peculiarly remarkable, 
but simply because it fell under my own observation. I can give another more 
striking instance of mental operation in this intelligent animal. He accompanied 
a servant, who rode to a place at some distance from home. The horse was tied 
to a tree in front of a house, while the servant executed his message. "When, 
after some delay, he came out of the house, the horse was gone ; he went on a 
hill, and from this elevated spot he observed the dog leading the horse by the 
bridle, which the canine leader held in his mouth, both trotting at a moderate 
pace. The dog brought home the horse and led it to its proper place in the 
stable. So he was in the habit of leading one of the horses to be watered. This 
animal was sent from the coast of Labrador, and was not of the common long- 
haired breed of Newfoundland dogs. 

Several interesting works have been written on the instinct, habits, and extent 
of thinking in animals. Some great physiologists, such as Haller, have collected 
most remarkable facts. There are some interesting anecdotes, connected with 
this subject, to be found in various volumes of the London Library of Entertain- 
ing Knowledge. 

The reader who has any curiosity to know the old writers on the question 
whether animals have souls or not — a subject much discussed at one time, on 
religious grounds — may refer to the article Rorarius, in Bayle's Dictionary. 



CHAPTER II. 

Sensuality and Rationality. — Man can determine his own Action — is free. — Ani 
mal Affection. — Right and Wrong; Ought and Ought not. — Conscience. — What 
it is. — Its Origin. — Locke's Opinion discussed. — Universality of Conscience- 
Uniformity of Moral Codes and Views. — The Thugs and Battas. — Can we 
explain Man's Moral Character by Sympathy alone ? 

IX. The infinitely superior intellect of man leads to another 
more important difference between him and the brute creation. 
The animal is, with rare exceptions, strictly confined within 
its own sensuality, that is, within the sphere of its senses 
alone. They direct its actions, or afford those impressions on 
which its limited sphere of thinking depends. Its affections 
are founded on its sensual impressions and impulses; the brute 
lives and moves within the sensible world alone. I said, "with 
rare exceptions." If a dog, as lately happened, rushes into a 
house wrapt in flames, to save an infant far too young to have 
ever bestowed any act of kindness upon the animal, and if the 
animal, nevertheless, saves no article to which it had been 
accustomed for years, it cannot be denied that this is, in its 
kind, affection, to which the sensuality of the animal alone 
cannot have prompted or the mere sensual nature impelled it. 
These exceptions have nothing startling for us. Who will say 
that he has seen the whole order of things in its details ? who 
can aver that he knows for what the Great Ruler has destined 
his brute creation ? 

X. Man, belonging likewise in part to the sensible world, 
and being subject to the necessity of matter, according to his 
sensuality, i.e. to his belonging to the sensible world and its 
laws in which everything is determined, and does not deter- 
mine itself, has, on the other hand, the great and grave privi- 
lege to determine himself He can guide, determine himself 

31 



32 ETHICS IN GENERAL, 

by reason, within certain limits given by the material world , 
he can choose. According to his sensuality, man is bound ; if 
be feels pain, he cannot help being prevented by it from freely 
thinking ; according to his rationality he is free, he reflects 
and chooses — he enjoys freedom. His will is free, because 
he can determine himself, with regard to willing an object of 
which he is conscious. The proof of this is our consciousness 
of being able to will something which is repugnant to our 
sensuality, or which may cost us the greatest sacrifices of our 
warmest affections. The dog could be driven by its affection 
to act against its senses and common instincts ; but it cannot 
elevate itself by reason above even this affection.' 

XI. If man acts, he may be impelled by instinct, or prompted 
by his sensuality, e.g. when he drinks, being thirsty, or strug- 
gles to save himself from drowning, in which case he acts in 
common with the animal. Or he may determine hi's own will. 
In the latter case, he may be actuated either by motives of 
expediency, when he simply judges whether his action will 
lead to the object he has in view, e.g. when he grinds the sickle 
to reap his wheat; or by moral motives (which in this case 
include the immoral ones, as illness is included in the state 



* It is one of the greatest and most difficult problems of philosophy to show 
how the free agency of man, or self-determination, is compatible with the neces- 
sary order of things, the omniscience of the Deity, and the dependence of man 
on society, or, which is the same, how man's ethical individuality exists along 
with his close and intimate connection both with the matter around him and the 
general course of the development of human mind, his close dependence upon 
the times he happens to live in. Though far from being solved, whatever some 
recent philosophers may have advanced, deceiving themselves by an amplification 
of words rather than an explanation of the subject, we know enough, and it can be 
sufficiently pi-oved, even were not the consciousness of our ethic character so 
primary an element of the human soul, that both do exist, and that therefore the 
solution of the difficulty must be possible, — whether in this world is another ques- 
tion. Mr. Qu^telet, a writer of uncommon merit, has given most interesting 
statistical details on the physical laws which influence the intellect and moi-al 
character of man, in one of his recent works, entitled On Man and the Develop- 
ment of his Faculties, or Essay on Social Physics, Paris, 1835, 2 vols., in French 
— a work deserving attention. 



RIGHT AND WRONG. 33 

of health). The moral motives make an action good or bad, 
praiseworthy or hateful, deserving of applause or condemna- 
tion. 

Whence arises this new element in the human soul ? — this 
principle according to which we call actions good or bad, and 
which we are unable to apply to matter, or to the animal 
mind, but to the human actions alone ? 

XII. It is evident that had we not the sense of sight it 
would be absolutely impossible for us to arrive at the notion 
of color by the operation even of the keenest intellect, or the 
most comprehensive genius upon perceptions received through 
the other senses. Yet we are conscious of the perception of 
color, and could not possibly alienate it from our mind, even 
were we to attempt it, for the very reason that we are con- 
scious of it in precisely the same degree as we are conscious 
of our existence. No man can prove either. If a person were 
to ask us to prove our consciousness of the notion of color, 
we could not do so — the question relates to a primordial con- 
sciousness of the mind itself; but we would answer perhaps thus : 
*'A11 we can say is, we know, we are conscious of the fact, that 
we exist, that we see, that we have the notions of different colors. 
If you deny it, there is no remedy ; but, whatever you may 
pretend, the truth is, you yourself cannot help acknowledging 
them to exist in every one whom you see endowed, like your- 
self, with the organs of sight. Your own consciousness of 
the perception of colors forces you— not by a long course of 
reasoning — to acknowledge it in others, as soon as you see 
them endowed with active organs of sight. And, what is far 
more important, you do not only allow the consciousness of 
color to exist in others, but you demand it, you insist upon it, 
you presuppose it in every fellow-creature, and found your 
conversation, arguments, social and political intercourse, upon 
it. You would go so far as to punish the pretence of its non- 
existence, e.g. if an officer were to pretend that he perceived 
somehow or other a flag being hoisted on the admiral's vessel 
but he knew nothing about the colors exhibited by the flag 

3 



34 



ETHICS IN GENERAL, 



or you would be dissatisfied with a servant were he to gather 
fruits which evidently show by their color that they are not 
ripe. You acknowledge and demand the consciousness of 
color in others, because you are conscious that you possess it 
qua homo, i.e. you do not only feel, believe, but you have the 
undoubted, primitive, and absolute certainty of it ; you know 
that this consciousness constitutes an essential attribute of 
your being, and that it is not accidental."' 

Greater certainty than this absolute consciousness we can- 
not possibly obtain. We might show the great probability 
that all men qua homines, if provided with sound eyes, have 
the consciousness of color, because we find traces of this sense 
among all men, and conclude that future generations will re- 
semble their forefathers ; but it can be made probable only in 
this manner ; while absolute consciousness gives us absolute 
certainty. Take, for instance, " I know I am ;" this is more 
certain than any mathematical proof can be made, for even 
that has first to rely on some axioms, which presuppose not 
only my existence, but also a belief in my own judgment and 
the power of the mind to draw correct conclusions. 

XIII. Precisely similar to the foregoing, with regard to its 
origin, is the idea, " we ought," " thou shalt" or " shalt not" 
— the idea or consciousness of right or wrong. The subtlest 
intellect, the most vigorous mind, unaided by anything else, 
cannot arrive at any other idea, with regard to an action, than 
that of expediency, fitness, correctness, respecting the choice 
of means for the object in view. Yet we find in all men, even 
in the lowest or most barbarous, the feeling denoted by " he 
ought,'' or "he ought not,'' entirely independent of the ex- 
pediency or judiciousness of our action — in a word, we find 
the moral element in the human soul — the consciousness of 
right and wrong, not of a particular right or wrong, but simply 
that there are actions which can be called right, and others 



* [Yet some men are color-blind. We assume, from what we know of our- 
selves, a general aggregate of human qualities, unless we find proof to the con- 
trary.] 



RIGHT AND WRONG. 35 

which are wrong independently of their expediency. Neither 
experience, nor revelation, nor anything else could have given 
or can have been a substitute for this original consciousness of 
ought or ought not — of right or wrong. 

Suppose for a moment there was no idea of right or wrong 
in your mind — no feeling of ought or ought not ; though this 
supposition is as difficult a process as that of imagining our- 
selves for a moment without any notion whatsoever of color ; 
for we are primitively conscious of them, and it is exceedingly 
difficult to imagine ourselves even for a moment not to be 
conscious of that of which we are conscious. Indeed, we 
never can wholly succeed in this process, because this con- 
sciousness forms part of our very self Suppose, however, as 
well as you can, you had no feeling whatever of right or 
wrong, what could possibly prevent you from stealing anything 
of which you are in want, and if convinced, as in some cases 
you well might be, that detection of the theft itself is impos- 
sible, that the article will never be missed ? Experience ? I 
ask, what experience ? — external experience ? For instance, 
that thefts are generally discovered ? Our experience may 
lead us to the very contrary. We may be lawyers, and by 
experience have become convinced that the greater number 
of thefts remain undiscovered and unpunished. Or that we 
know by experience, from observing others or ourselves, that 
doing wrong does not afford lasting pleasure? Then I ask, 
what pleasure ? — external or internal ? If external be meant, 
the assertion is unfounded, for many men live a most comfort- 
able life to the end of their days with means fraudulently or 
criminally acquired. If internal pleasure be meant, it is only 
another expression for the pleasure, or applause, we feel inde- 
pendently of the expediency of our action, which is the very 
thing I insist upon. Or because we know by experience that 
no one will prosper upon fraud? This is unsound again. 
People, families, dynasties, many successive generations, have 
prospered upon fraud and crime ; every day's experience, as 
well as history, proves the fact. God has given to man a far 
higher character, and the order of things in creation is founded 



36 ETHICS IN GENERAL, 

upon a far different principle than the gross one that worldly 
misery follows upon wrong, and prosperity upon right, in each 
case. Indeed, it would not be a moral world, if the necessary 
consequence of theft were the withering of the arm that com- 
mitted it; if the tongue that lies were stricken with palsy. 
On the contrary, it would be a non-moral world, a world of 
necessity and not of freedom of action. It is unsound, it is 
immoral, to teach the young that by virtue they necessarily 
insure worldly success. The truth ought early to be incul- 
cated, that virtue may not lead to success, that it may lead to 
far greater pangs than those who are not virtuous ever can feel, 
for the very reason that they are not virtuous. — Or because 
revelation says. Thou shalt not steal ? Suppose we have no 
feeling of right and wrong, or, which is the same, that we ought 
to do what is right, and ought not to do what is wrong — and 
it will be recollected that we argue under this supposition — 
what should induce us to obey revelation, even if we had 
acknowledged it as such ? It must needs remain an entirely 
extraneous matter to us. No revelation could be addressed 
to non-moral beings. Or do we obey revelation merely be- 
cause punishment is threatened to the disobedient here as in 
the world to come ? This will not be claimed by any true 
believer, for two reasons. Fear, of itself, is no moral motive. 
The animal which does or omits certain things because it 
knows that chastisement will follow disobedience, does not act 
morally on this account. So marked is the difference between 
the action of the animal and man in these cases, that some 
languages, e.g. the German, have distinct words for the inflic- 
tion of evil in consequence of prohibited action, one with, 
another without, reference to the moral character of the pun- 
ished action. But let us even waive this point ; what can at 
all give birth to a belief in the punishment with which we are 
threatened for immoral acts or the wrong we do, if we have 
not previously the notion of right and wrong, and that there^ 
fore the latter deserves punishment, because we ought not to 
have done it ? 



CONSCIENCE. 3; 

XIV. This original consciousness of right and wrong — ^this 
consciousness of we ought or ought not, — is called conscience, 
from the Latin word conscientia, consciousness, from conscio, 
con and scire to know, applied to this specific consciousness 
of right and wrong, conscientia boni et mali, recti et pravi, be« 
cause it is the most important of the different species of con* 
sciousness. In many, perhaps most languages, the word 
which designates this consciousness is derived from a corre- 
sponding root. The German Gewissen is derived from the 
verb wissen, to know, to wit; the Greek ffovsidrjaiq is etymo- 
logically the same with the Latin,' 

I repeat, the experience of pleasure cannot give us the 
notion of right and wrong. I ask, who has cast an account 
of all actions in his life which have afforded him sen- 
sual pleasure (for as to the other kind of pleasure I have 
already shown that it coincides with what is claimed), or 
made out a list of all actions with which he has become 
acquainted both in history and his own experience, and of 
those which have given him unpleasurable or painful sensa- 
tions, and accordingly made up his opinion what actions he 
will call good or bad ? Besides, if we adopt this ground, 
what have we to oppose to those who maintain, and in truth 
too, that those actions which we call vicious, criminal, or vil- 
lanous have given them the greatest pleasure, for instance, 
the entrapping of unwary innocence ? There have been not 
a few people who have found delight in cruelty itself, i.e. in 
the infliction of useless pain, though they felt they were 
doing wrong. The fact cannot be denied ; observation as 
well as personal confessions confirm it ; ' and yet conscience 



» ^vveidrjaLQ, from ovvoida, I am one who knows, is conscious of a fact. It is 
the form of the perfect with the signification of the present tense of 16- fid- 1 see, 
a verb never used in the present tense, the perfect of which, I have seen, have 
perceived, denotes the result in the present time, / know, ^vvoi^a is perhaps 
know with myself, i.e. I am both object and subject of knowledge. 

' * The confessions of Margaret Gottfried, executed at Bremen in 1830, are an 
illustration. She had poisoned successively above thirty persons, including her 
parents, children, friends, etc., and found pleasure in the excitement. If we 
choose to call every crime monomania, she was a monomaniac ; but there was 



58 ETHICS IN GENERAL. 

does not only act in despite of it, but approves in those cases 
most in which we feel most compelled to act contrary to 
pleasurable sensations. 

Conscience is, then, an original consciousness of right and 
wrong, not of a specific right or wrong; it is the conscious- 
ness according to which we are undeniably aware that a 
difference of right and wrong, good and bad, exists. Like 
every species of consciousness, that of our existence not 
excepted, it begins with an indistinct feeling, and becomes 
clearer the more effectually the matured mind (both matured 
by the age of the individual and the progress of civilization) 
acts upon it. So it is with the beautiful; so it is with all ideas 
we receive through the senses. The sense of sight is first but 
dim. The mind must act upon the impressions received, and 
the sense itself must be practised, before it becomes clear. 
People who live in large cities see nothing but one vast green 
mass when they view a forest from the top of a hill ; while 
the practised eye of a hunter, or ranger of the wood, discerns 
at once numerous and important differences. Most astonish- 
ing instances of the degree to which the keenness of the eye 
can be improved, and how rapidly it may work in observing 
distinctive marks, are on record ; ^ yet the sense of sight is 
innate, or the idea of color could not possibly have been 
arrived at. As the human eye observes at one time a horse, 
at another a stag, and as the intellect arrives, from these two 



no other sign of insanity about her, except the enormity of the crime itself. She 
sung hymns, was peculiarly sentimental, vain, etc. See her biography by her 
"defensor," Dr. F. L. Vogt, Bremen, 1831, one of the most awfully interesting 
of books in a psychological view. 

* Thus, the English papers of the early part of 1837 communicated the follow- 
ing fact, with names of persons and places, so that little doubt as to the truth of 
the matter can remain. A wager was won in the parish of Rewe by a Mr. 
"Whipple, who engaged to take sixty ewes promiscuously out of his flock and 
have their lambs penned off from them at a distance ; and to go to the ewes, fix 
upon one, and then proceed to the lambs and select the one belonging to the 
former; the next time to fix upon a lamb, and then point out the proper dam 
among the ewes. The wager was won without a single mistake, to the perfect 
Batisfaction of the judges — all impartial and well-experienced farmers. 



LOCKE'S THEORY OF CONSCIENCE. 



39 



perceptions, at the perception of a quadruped, or perhaps at 
that of brown color; so does man feel, at doing certain things, 
that he ought to have done them or not, and by the operation 
of the mind constantly analyzing and generalizing he arrives 
gradually at more distinct ethic notions.^ Conscience is 
developed, cultivated, made delicate, in conjunction with re- 
flection, the development of our feelings in general, and 
experience ; but the consciousness of right and wrong is pri- 
mordial and geiteral. On this last point I shall say more. 

XV. The question as to what conscience is, and even as to 
its very existence, has become one of the greatest magnitude, 
since some philosophers have maintained the innateness of 
certain ideas, and others have denied their existence. It is a 
fact on record in the history of philosophy that some have 
maintained the innateness of ready-made ideas, if we may use 
this expression. On the other hand, those who denied them 
confounded, in their arguments, ideas, notions, rules^ princi- 
ples, and consciousness with what is arrived at in conjunction 
with this consciousness by the action of the intellect upon 
received perceptions. Locke, one of the foremost of those 
that denied innate ideas, is likewise one of the foremost in this 
confusion of terms, and, at times, illogical use of them. He 
calls conscience " our own opinion or judgment of the moral 
rectitude or pravity of our own actions" (Book I., chap, iii.. 
On Human Understanding), and then proceeds to show that 
it cannot be inborn, which is quite correct, for the very term 
** opinion" involves the idea that it is something arrived at by 
reflection. Reflection is an act of the mind; how can it then be 
inborn? A faculty may be, an action cannot. But though it is 
easy to refute this erroneous definition of conscience, he uses, 
besides, untenable arguments in proof of his position. He 
applies one of his general arguments against all innate ideas, 



* [But the author has not explained the passage from the general simple idea 
of right or wrong to the feeling or conviction that a particular act is riglit or 
wrong] 



40 ETHICS IN GENERAL. 

also against the innateness of conscience, namely, that if in- 
born they must be as active in the child as in the adult. If 
this be sound, I ask whether the sense of sight and all the 
other senses, upon which Locke relies so firmly, be not innate, 
because Mozart, when an infant of two days old, was certainly 
unable to distinguish between the sweetest harmony and a 
grating discord ? Is the sense for harmony not inborn, be- 
cause the savages know nothing of the concord of sounds 
If not, whence do we derive it ? Have the civilized nation- 
agreed to be delighted with accords and to be displeased by 
discords ? Are eighths, fifths, and thirds inventions ? Is 
sight not inborn, because the puppy is born blind ? This 
argument of Locke's rests upon the unfortunate mistake 
which so many millions of people, whether on his side or 
not, have committed in confounding the idea of artificiality, or 
unnaturalness, with that of development. Thousands of the 
acutest instincts, which cannot possibly be denied to be such, 
are yet not active in the young animal. Locke, in discussing 
the innateness of conscience, argues altogether on moral 
rules, and even then he does not use the proper means ; while 
at other times he says, every one must see the reasonable- 
ness of a certain moral act. Nothing is easier than to admit 
the reasonableness of the actions mentioned by him, if we 
admit the primordial consciousness of right and wrong; if 
not, the very word reasonableness does not apply to human 
actions any more than to those of the brutes. The animal sees 
no reasonableness in the demand that it must not kill another 
for trying to get its food, obtained by hard exertion. Locke 
further opposes the innateness of conscience on account of 
the variety and disagreement of moral feelings. This is not 
distinct ; moral notions vary, the feeling does not except in 
degree, but not in kind. For the moral feeling furnishes us 
with nothing more than the consciousness of the fact that we 
can and must attribute a moral character to our actions, i.e. 
to ourselves. We waive this point, however, and proceed on 
Locke's argument itself According to him, the mind is a 
blank paper on which our senses write impressions, which 



LOCKE'S THEORY OF CONSCIENCE. 



41 



the intellect analyzes and combines. Now, by what sense 
can any moral notion, be it the humblest, enter into our 
mind ? Things themselves are black, large, ponderous, etc., 
but never moral or immoral, nor are the outward signs or 
manifestations of actions any more so ; for killing, beating, 
speaking, are neither moral nor immoral of themselves, any 
more than the axe with which murder has been committed. 
If then the notion of morality cannot come from without, it 
must, according to him, be derived from the intellect. But 
the intellect, unaided by anything else, cannot possibly arrive 
at any other idea with regard to actions than that of utility, 
efficacy, expediency, judiciousness, or the contrary. It ana- 
lyzes and combines the perceptions of things, but it does not 
infuse new elements of thought or feeling. Again, how can 
he in his way explain the variety of moral opinions ? There 
is no innate consciousness of right or wrong, he says, because 
there are various opinions respecting the morality. If so, 
then there are no innate senses and no innate mind, for the 
variety of moral opinions would prove this according to him- 
self. The truth is, the variety of moral opinions is owing to 
the intellect, which operates with the moral and sensual sen- 
sations combinedly. 

XVI. Some French philosophers, who carried the theory of 
Locke to an extent which he did not contemplate, but which 
was nevertheless a consistent progress on the path he had 
begun, and who did not stop short of absolute sensualism, 
have endeavored to show that conscience is made by edu- 
cation, law, government, etc. The author of a work entitled 
Mes reves, ou Vart de ne pas ni' ennuyer^ ascribes the invention of 
conscience to the Egyptian priests in order to complete human 
civilization — a very useful and wise invention ! When was the 
sense of sight invented? 

If we ask how does the idea of good or bad enter the human 
mind, we are told by the followers of the theory of sensualism, 
because we have been told so. But who told those that tell 
us ? I declare myself utterly at a loss to conceive, even for 



42 



ETHICS IN GENERAL. 



argument's sake, how a new principle can be talked into the 
human soul, not to speak of the impossibility of making any- 
thing universal which is not founded upon some principle in 
the human soul itself The objection of Locke that moral 
rules require proofs, ergo that they are not innate, is perfectl}'- 
correct. Moral rules cannot be innate ; for rules are the effect 
of reasoning; though I shall have to say a word or two on 
this point also. 

XVII. I maintain: i. Conscience is universal. 2. The 
uniformity of moral rules is greater than their disagreement, 
especially with civiHzed people, with whom this consciousness, 
therefore, as every other species of consciousness, has been 
most developed and shows more clearly its essential nature. 

I. Conscience is universal. It has been mentioned already 
that those who deny the innateness of conscience cite, as one 
of their strongest arguments, not only the difference of moral 
opinion, but the fact that actually some tribes consider lauda- 
ble what others punish or would punish as the vilest crime. I 
do not deny the fact, and shall bring stronger ones than Locke 
has offered ; for they will only become the stronger proofs on 
our side. That people have burnt and racked their fellow- 
creatures, Catholics Protestants, and Protestants Catholics — 
some of whom at least believed they did right while they 
perpetrated their religious crimes — every one knows but too 
well. Yet Locke said he believed in the Bible ; and all of 
those persecutors said likewise that they relied for the recti- 
tude of their actions on this book. This, then, according to 
Locke's rule, must effectually destroy that character of the 
Bible which he nevertheless ascribes to it. Men relish very 
different articles of food, and some desire what to others is 
loathsome. Does there exist on this account no innate in- 
stinct which tells us that we must eat when we are hungry, 
nor any innate sense of taste ? 

When Bruce first published his account of Abyssinia, people 
would not believe that the inhabitants of that country feasted 
upon meat cut out of living oxen close by the fire, so that the 



THE BATTAS. 



43 



steak may be swallowed while yet quivering. Alas ! facts 
worse than this have become known since then. The Battas, 
a nation of Sumatra, eat their prisoners alive, after regular 
trial, if found guilty of adultery, midnight robbery, intermar- 
rying in the same tribe, treacherous attacks on a house, village, 
or person, or if the prisoner has been taken in wars of impor- 
tance. The prisoner is tied to a stake, and the injured party 
cuts out first a choice piece, which is immediately dispatched, 
either grilled or dipped in sambut — a mixture of salt and 
pepper. Certain parts of the body, as the palms of the hands 
and the soles of the feet, are considered great delicacies. The 
heart is also much liked, and many drink the blood through 
bamboos. What makes this heart-rending account still more 
appalling is the fact that the Battas have a government, write, 
cultivate the ground extensively, believe in a God, and have 
many fine qualities, superior to those of the surrounding na- 
tions. The fact cannot be doubted. Sir Stamford Raffles 
investigated the subject personally, and states it upon unim- 
peachable testimony in a letter to Mr. Marsden, dated Feb- 
ruary 27, 1820. (Life and Public Services of Sir Stamford 
Raffles, 4to, p. 425.)' The Battas speak of this cruelty with 
the utmost calmness. 

But we need not go to what we are in the habit of callmg 
savage tribes to find instances of such enormities. The Span- 
iards who conquered the southern continent of America out- 
did all cannibals in cruelty, except in the act of eating human 
flesh. This might increase our physical disgust, but morally 
we feel more disgusted when we read of Indians being slowly 
roasted, or worn down by excessive labor, to satisfy the dia- 
bolic lust for gold, — when we find the names of mastiffs handed 
down to posterity because they distinguished themselves in 
hunting and tearing the Indians, for which their masters re- 



* An extract from this lettet may be f~>und in a volume of a work more 
generally diffused, — namely, The New Zealanders, page io8 et seq., forming the 
first part of that excellent publication, the Library of Entertaining Knowledge 
published under the superintendence of the London Society for the T^^ffusion 
of Useful Knowledge. 



44 



ETHICS IN GENERAL. 



ceived the regular share of booty allotted to an armed man 
Leoncico was the name of the bloodhound belonging to 
Nunez. And all this in return for genuine kindness and 
humanity; for "the Indians always did more (by way of 
hospitality) than they were bid to do," as Bishop Las Casas 
testifies. Refined torments were paid back in return for un- 
suspicious and kind reception. (See Voyages and Discoveries 
of the Companions of Columbus, by Washington Irving, Phil- 
adelphia, 1 83 1, especially the Lives of Ojeda and Nunez.) 

I was walking one day in the streets of Rome, when I met 
with a nurse who had strung a number of chafers on a knitting- 
needle in order to amuse the infant she held in her arm, by 
the contortions of the tortured animals. When I expressed 
my horror, the answer was, Ma non e roba battizata (but it is 
unbaptized stuff). 

Are these instances, however, anything else than instances 
of perverted judgment or a moral feeling which has been un- 
fortunately made callous by the former ? The Battas, before 
they eat the prisoner, give him, according to their notions, a 
fair trial; and what is the fundamental idea of a trial? That 
justice be done. But what kind of an idea is justice, if not 
an ethical one ? The animal incited to eat its kind would 
not wait in this case, but destroy the desired object at once. 
Those Spanish adventurers, cruel almost without parallel, 
from the meanest of motives — the yearning for riches — were 
most " chivalrous, urbane, and charitable" towards each other, 
ready to make any sacrifice. Those that were vindictive, 
bloodthirsty, and without any faith towards the Indian were 
magnanimous and full of honor towards each other. (See 
Irving, as above, chap, xii., Ojeda's third voyage.) The prin 
ciple of morality had, therefore, not been plucked out of their 
hearts ; but bigotry and avarice had perverted their judgment 
and moral feeling. The Indian was not considered within the 
pale of ethic obligation. 

The Italian girl would have felt very indignant if some 
other cruelties had been laid to her charge. I have become 
acqu?iinted with the existence of no tribe, however low or 



UNIVERSALITY OF CONSCIENCE. 4c 

barbarous, which does not consider some things right or 
wrong independently of their desirableness. The account 
lately given by Mrs. Frazer and her companions in misery, 
before the Lord Mayor of London, of the New Zealanders, 
among whom they were wrecked, and who at times eat their 
own children, is every way distressing indeed ; but these same 
New Zealanders would probably have been very angry at an 
ungrateful return to an act of kindness on their part, merely 
on account of the ingratitude with which their kindness was 
requited. 

I have become acquainted with the life and actual state of 
mind of many criminals, and never have I met with any con- 
vict, however depraved or however proud of the crime he had 
perpetrated, and however free at the time from all compunction, 
who would not have felt incensed at the imputation of some 
crimes or even merely immoral acts, for instance, that of be- 
traying his wife. A remarkable observation I have made is 
this, that few criminals — I never found yet one — are willing 
to confess arson. Any other crime will, at times, be readily 
confessed, but not arson. Why? Because it is more of an 
imputation upon the honor of the man ; because the crime is 
meaner, i.e. more immoral, in the eyes of the criminal, than any 
other. 

The fact that bands of criminals will always form a certain 
moral code among themselves, shows the inalienably moral 
character of man, however perverted his judgment and feeling 
may be by passions.* A robber says, ** The world has treated 
me badly, I treat it badly in turn," or, " They are rich, I am 
poor : why should I remain so ?" But within the band the 
same robber might feel indignant at theft or cheat. The same 
is the case with smugglers, or with Christian merchants who 
smuggle opium into China, though they know it leads to the 
destruction of the infatuated buyers.^ They may, in their 



« * Quin etiam leges latronum esse dicuntur, quibus pareant, quas observent. 
Cic, De Off., ii. 11, 40. 

* * See, for the quantity smuggled into China, Greenbook Q, p. 106. Davis, 
The Chinese, i. 454, et seq. , gives reports to the emperor, and edicts, which show 



46 ETHICS IN GENERAL. 

perverted judgment, consider the Chinese out of the pale of 
civilization, yet the consciousness of right and wrong has not 
left them on this account. It cannot be torn from the human 
soul. 

XVIII. 2. The uniformity of moral rules is greater than 
their disagreement. The moral codes of nearly all nations 
prove it. They all, for instance, disapprove of murder, i.e. the 
taking away human life maliciously or uselessly, but they 
disagree as to what useless is. They disapprove of theft, but 
they do not agree on what constitutes theft, e.g. at Sparta a 
youth might steal some things, but only such as the law did 
not forbid. This will appear much clearer when we come to 
speak of the general moral law. Here we merely add that 
there is a natural or innate horror at certain specific crimes, 
which cannot be denied. We know that man can be recon- 
ciled to the worst by custom, yet, on the other hand, it takes 
time to denaturalize him as to some actions, for instance, 
murder. In a work of thrilling interest, lately published at 
Calcutta,^ an authentic account is given of the thugs — that 
religious fraternity of strangling thieves in the East Indies. 
We find there, from the testimony of many thugs, witnesses 
perfectly respectable, and who are borne out by the most 
intelligent Europeans resident in the East, that there has 
existed for centuries an extensive sect of robbers, who have 
carried on murder and robbing so systematically and profes- 
sionally that strangling became a species of art, a trade with 



the frightful consequences. The soldiers against the late rebels were found good 
for nothing, among other reasons, on account of the many opium-smokers. 

» This work, with which I am acquainted through extracts only, given in an 
article to be found in the January number of 1837 of the Edinburgh Review, is 
entitled Ramaseeana, or a Vocabulary of the Peculiar Language used by the 
Thugs : with an Introduction and Appendix, descriptive of the System pursued 
by that Fraternity, and of the Measures which have been adopted by the Su- 
preme Government of India for its Suppression; 8vo, Calcutta, 1836. When the 
article was writing, the printed work had not yet been published. Since the pre- 
ceding lines were written, a work, Illustrations of the History and Practices of 
\he Thugs, etc., London, 1838, has ^een published. 



THE THUGS, 



47 



proper technicalities and requiring a long and patient appren- 
ticeship. Thousands have belonged to this sect, and not one 
ever felt remorse at what he had done. Nor was this dia- 
bolical trade attractive by its perils and excitements, so as to 
appease the conscience of the adventurer by his own personal 
exposure to danger, which not unfrequently appears to the 
daring criminal as equalizing the state of things between the 
robber and the robbed. On the contrary, the thug inveigles 
and tries with infinite patience to gain the confidence of the 
traveller, until at the proper place and time he strangles his 
victim while the apprentice holds his legs in perfect security. 
They infest land and river under all guises, make no distinc- 
tion as to sex or age, to confidence shown them, or reliance 
placed upon their protection. The account given in the work 
alluded to, with all its horrors, the utter absence of what we 
expect to find with most people, the monstrous perversion of 
judgment and of religion, which here again is made to appease 
conscience and to annihilate the simplest elements of morality, 
for which zealots, barbarians, and criminals have at all ages 
perverted it, is sickening and humiliating indeed — and proba- 
bly more so than the barbarity of the Batta when he cuts a 
slice from his living enemy ; yet we must not forget that, mon- 
strous as thuggee is, the thug never pretended to be absolved 
from the general rule of morality, never denied the difference 
between right and wrong. He throttles to rob indeed, but the 
murdered person is but the victim thrown into his hands by 
Devee or Kalee, the goddess of destruction of Hindoo my- 
thology, and the only one requiring human sacrifices, a god- 
dess acknowledged by all Hindoos^ yet especially worshipped 
by the professional stranglers, her votaries — " several thousands 
of persons pursuing murder as a trade, generation after gen- 
eration, not one of whom entertained the least suspicion that 
he was doing wrong." A convenient mythology of their god- 
dess explained why they pursued murder in this way, and why 
they were right in doing so, even though they murdered, ac- 
cording to their own confession, for robbery alone. The thug, 
however, thought no strangled person would haunt him, be- 



48 ETHICS IN GENERAL, 

cause the victim thus offered to his goddess went directly into 
paradise. The thugs are generally amiable men at home and 
in society, good fathers and husbands, and, with the exception 
of thuggee (thuggism), belong to the most peaceable class of 
citizens. But in this book we do not meet merely with facts 
which show that mistaken religion can silence any voice within 
us, and mistaken religion more quickly and effectually than 
anything else ; we find, on the other hand, that the human 
heart requires at least an apprenticeship to become inured to 
the trade of murder. "They (the apprentices) neither see 
nor hear anything of murder during the first expedition. 
They know not our trade ; — they get presents, purchased out 
of their share, and become fond of the wandering life, as they 
are always mounted upon ponies. Before the end of the 
journey, they know that we rob. The next expedition, they 
suspect that we commit murder, and some of them even know 
it; and in the third expedition they see all." Amidst the 
testimony of so much cold-blooded murder, the reader feels 
almost relieved for a moment, by way of vindication of human 
nature, when perusing the passage in which a witness testifies 
that his cousin Kurhora was taken for the first time to a thug 
expedition when about fourteen years of age. By an over- 
sight of the person who had charge of him, while the stran- 
gling of many persons was going on, Kurhora escaped and 
rode up to the scene of murder, where he was so overcome by 
the shocking transaction that the sight of the turbans of the 
murdered men made him delirious ; he uttered screams at the 
approach of a thug, and before evening arrived he was dead. 
We owe an active, well-concerted, and effectual suppression of 
the thugs to Lord Bentinck, governor-general of India, who 
has inscribed his name on the pages of the history of civil- 
ization by abolishing the suttees, as well as whipping in the 
native British army of the East. 

Not only are moral codes more uniform than it has been 
frequently supposed, but even the laws of nations. Still, though 
they were far less uniform, it would prove nothing against our 
position We contend here that the moral principle is abso- 



UNIFORMITY OF MORAL CODES, 



49 



lute and universal. Nations may rest in very different ways, 
sitting, reclining in hammocks, or lying on couches, but all must 
acknowledge the principle that rest is requisite after exertion. 

With regard to the uniformity even of laws, I cannot but 
conclude this section with an extract from Mr. Michelet's Origin 
of French Law, lately published. He says : 

" We have studied the juridical symbol under the two points 
of view of its age and its nationality, which diversify it infi- 
nitely. Nevertheless, whatever variety may be discovered, unity 
predominates. It is an imposing spectacle to find the principal 
legal symbols common to all countries, throughout all ages. 

" In truth, to one who considers not the human race as the 
great family of God, there is in those multitudinous voices, 
out of hearing of each other, and which nevertheless respond 
each to each from the Indies to the Thames in reciprocating 
sounds, wherewithal to dismay the intelligence, to strike the 
heart and spirit of man with consternation. 

" Transporting was the emotion which I myself experienced 
when for the first time I heard this universal acclaim. Unlike 
the skeptic Montaigne, who so curiously ferreted out the cus- 
toms of different nations to detect their moral discordancies, 
I have found a consentaneous harmony among them all. A 
sensible miracle has arisen before me. My little existence of 
the moment has seen and touched the eternal communion of 
the human race." 

Far more striking, however, is the uniformity, or, at least, 
agreement, of the moral views, when we observe the daily in- 
tercourse of individuals and nations. There are many excep- 
tions, undoubtedly, and yet they are after all but exceptions ; 
but they attract more attention because they are exceptions. 
Let a foreigner, a European, join a caravan of Arabians, and 
observe how much more they ethically agree than disagree, 
though born in different climes, nurtured by different associa- 
tions, reared in different religions.* 



« * The moral and legal maxims of no nation, perhaps, in this respect are more 
interesting to us than those of China, because they have been settled and devel- 

4 



50 ETHICS IN GENERAL, 

XIX. One question remains to be answered, — namely, Is not 
sympathy alone sufficient to explain the phenomena of the 
moral world, if we consider this deeply-seated feeling under 
the refining and perfecting action of the intellect ? Not a few 
philosophers have thought that it is. 

I do not only admit sympathy as one of the elementary 
agents in the moral world, but I claim it as the most active 
primitive element in everything by which man is tied to man. 
Though of an inexplicable and mysterious origin, though in 
many cases of a decidedly animal character in its first begin- 
ning, yet man unfolds and perfects it to a degree that it stands 
before us a subject as sacred as anything that can inspire the 
human breast with pure and elevated feelings. Is there a more 
sacred relation between man and man than that of a wise and 
proud mother and her affectionate and devoted son ? Yet in 
its first origin maternal love in the human race is the same 
instinctive affection we meet with in the brute creation. Nor 
does it stop here. There are many striking instances of a 
continued animal affection for the young, which, in default 
of offspring, passes over to that of other parents. A colored 
woman has come under my personal observation, who keeps 
herself continually surrounded with several pets, as she calls 
the infants which she begs of her acquaintances that she may 
have the pleasure of bringing them up. The name she gives 
to these children sufficiently indicates her feeling and relation 
towards them. It is that fondling love which we observe so 
strongly developed in some animal tribes. This woman takes 
no compensation for that which to others would be trouble, 
but to her affords the enjoyment that every creature derives 
from satisfying a desire deeply planted in it by nature. Her 
entreaties to give up to her, but for the limited time of a year 
or so, an infant, are very striking. 



oped in entire independence of the course of civilization to which we owe ours. 
The perusal, therefore, of trustworthy and accurate works on that country, is of 
much value. See, especially, The Chinese, by T. F. Davis, late Chief Super- 
intendent in China, London, 1836, 2 vols., — especially chapters xii., xiii., and 
xiv. of vol. ii. 



SYMPATHY. 51 

Though so deeply implanted and of so active a nature, 
however, sympathy is not sufficient to account for the moral 
character of man. In numerous, perhaps in most, cases, sym- 
pathy forms a component part of our moral actions, but in 
some it is directly opposed to our conscience; cases of this 
kind are by no means of rare occurrence. The judge who 
passes sentence on a prisoner is not supposed to be dead to 
all sympathy with the unfortunate convict. No person that 
knows anything of the secret history of criminals and of him- 
self can go through a penitentiary without confessing that, 
had he passed from childhood through the same circumstances 
and scenes which encompassed many inmates of the prison 
from their earliest years, he probably too would be in the same 
unfortunate situation. Yet this individual may be at the same 
time a strict and conscientious superintendent of the peniten- 
tiary. A soldier who fights faithfully and boldly for his coun- 
try is not on that account destitute of sympathy, not even at 
the very moment he fires upon the enemy. There is no battle 
which does not afford evidences of this fact. Sympathy alone, 
or in conjunction with the intellect only, could not have led 
man to the idea of morality and immorality, of right and 
wrong. It would, indeed, have prevented the perfectly clear 
perception of the idea. It may be concentrated to such a 
degree that it becomes mere passion, as, for instance, in some 
cases of affection towards a particular individual, with regard 
to whom nevertheless no other natural instinct, such as that 
existing between the sexes, can be alleged, in which latter case 
love appears to me sympathy concentrated both in its intensity 
and in relation to the person towards whom sympathy acts 
Sympathy may be increased to such a degree that it becomes 
disgusting, because it sinks to a wild, almost brutish intensity 
" Spencer tells us that once, when he was present at Limerick 
at the execution of a notable traitor, Murrogh O'Brien, he saw 
an old woman, his foster-mother, take up the head and suck 
the blood, saying that the earth was not worthy to drink it 
and then steep her face and breast in the streams which flowed 
from his other quarters, while she tore her hair and shrieked 



52 ETHICS IN GENERAL, 

most terribly." ' We are obliged, then, to acknowledge con- 
science as an original and primitive consciousness, though we 
allow sympathy to be a most active and indispensable element 
in man in general, and a powerful coefficient in moral actions. 



' I copy this account from vol. i., page 445, of Brodie's History of the British 
Empire, Edinburgh, 1822. 



CHAPTER III 

Ethic Character of Man. — How does Conscience act .' — Is it alone an Oracle 
or perfect Index? — Practical Moral Law. — Man's Individuality. — Morality 
founded upon it. — Our Ethic Character is inalienable., hence our Responsibilitv 
likewise. — Ethic Experience and Skill. — Various Ethic Systems. 

XX. Superior intellect, peculiarly expansive and refinable 
sympathy, freedom of will and rationality (or self-determina- 
tion of volition) and conscience constitute man's ethic char- 
acter — his moral dignity, the acknowledgment of which alone 
is sufficient to make us at once conscious of the great law, 
" Thou shalt not debase, in thyself or in any fellow-man, man's 
moral dignity ;" a fundamental law from which we derive, in 
ethics, the duties of man; in natural law, his rights. The 
very character of the ethic attributes of man involves the 
direct acknowledgment of the law just mentioned. Conscience 
tells us so ; we cannot do otherwise ; we must acknowledge 
it, it is " a law WTitten in our hearts," it is the law which rests 
on the consciousness of right and wrong, or by which, as tl e 
apostle expresses it, men are a law unto themselves.^ If it be 
denied, we could not prove it ; if a man should say, I deny the 
moral value of man, I use every one simply according to my 
interest or gratification, I want to make my children brutes, 
I want to kill men as I kill animals — we could do nothing 
but refer him to his own conscience and to his own acts, 
inasmuch as he will never allow a wrong done against him 
to pass without charging the offender with the wrong, or 
without making him accountable, which is nothing less than 



* " For when the Gentiles, which have not the law, do by nature the things 
contained in the law, these, having not the law, ate a law unto themselves 
{kavTol^ vofiog) ; which show the work of the law written in their hearts, their 
conscience also bearing witness, and their thoughts the mean while accusing or 
else excusing one another." Romans ii. 14, 15. 

53 



54 ETHICS IN GENERAL. 

attributing to him a moral character. Reason, therefore, 
which makes us acknowledge this law at once, not by induc- 
tion, syllogism, or any proof or process of reasoning, is said 
to possess in this case autonomy, i.e. it is its own law; or the 
law itself as such, is acknowledged at once, from ahxoq^ selfj 
and voixoq^ law. 

XXI. The superior intellect of man has been enumerated 
among his ethic attributes, because it is as indispensable an 
element of his ethic character or moral dignity as any other 
which has been mentioned. It is an unfortunate mistake, 
both in those who pretend to deny the original existence of 
conscience and many of those who mean to act by it, that 
conscience consists, as it were, of one list of actions which we 
ought to do, and another, of those which we ought not to do, 
or of a sort of gauge, which in each single case will, without 
previous cultivation or perfection, indicate infallibly what 
ought to be done, an oracle which needs but to be referred to 
in order to receive a ready answer. That this is not the case 
appears at once from two facts : first, we find that people have 
at times committed the most atrocious acts, not only without 
feeling any compunction whatever, as in the case of the thugs, 
but at times feeling actually decided self-applause. There is 
no ground, that we know of, to doubt that Ravaillac was per- 
fectly at peace with his conscience, as to the correctness of 
his act, when he plunged the dagger into Henry's heart. 
Criminal and mean-spirited as at all times many of the religious 
persecutors have been, there cannot be, on the other hand, any 
doubt but that many thought that they were doing a most 
praiseworthy work while they heaped the fagots around a 
God-devoted heretic. Besides, every individual knows from 
personal experience that in the moral progress of the soul he 
will now desist from doing things respecting the morality of 
which at a former period he never even entertained a doubt. 
Secondly, if conscience were so simple and clear an index in 
every given case, however complex, how should it happen 
that the conscientious find themselves much embarrassed in 



PRACTICAL MORAL LAW. 



55 



cases of conflict — the more so the more they are animated by 
an upright desire to do only what is right ? 

In this case, as in all similar ones, God has given us the 
principles, the seeds ; but he has not willed to make of men 
machines without the necessity of their own independent 
mental and moral life being developed and cultivated. As I 
said, that this world would not have a moral character if a 
withering disease were sure to consume the arm that steals, 
so would the character of man not be much more elevated if 
actually a sort of list of all good actions were written in the 
human heart, or if a certain and distinct sign, not to be mis- 
taken, were given at every action by way of approval or dis- 
approval, however complex its character might be, on account 
of a conflict of the most sacred interests. We are ordained 
to be men, and not to be impelled in morals in a similar way 
as we have seen that the animal is by its senses. Man, under 
all circumstances, should guide his volition by the action of 
the reflecting intellect. There is a pain we feel at having 
done wrong — who would say he never felt it ? But this very 
pain, or the pleasure in good actions, is subject to reflection. 
We have then to cultivate the original consciousness of right 
and wrong by reflection. Man does not live long, even in 
the rudest stages of society, without feeling approval or dis- 
approval at certain actions independently of their judicious- 
ness or expediency. These actions are gradually made the 
subject of reflection, the character of this approval or dis- 
approval is meditated upon, and finally man arrives at certain 
ethic results, clearly represented to his mind. 

XXII. The consciousness that we ought to do right and 
ought not to do wrong, and the great ethic law, which 
springs, as we have seen, directly from the ethic nature of 
man, make it necessary that we should not only express our 
moral obligation, but, if possible, find a supreme law which 
may serve as a test for our actions, by which in practice we 
may be more easily guided — a law, or norma, of practical use 
— the law of virtue, as it has been called. Most philosophers, 



56 ETHICS IN GENERAL. 

and many founders of religion, have endeavored to establish 
a law of this sort, and it is cheering to the human heart to 
find how many of these have agreed upon so essential a point, 
though separated by time and space in a manner that they 
could not be influenced by one another. It amounts prac- 
tically always to this : "Do or omit that which thou desirest 
that others do or omit." We have of course to settle what 
we desire of others, for we might desire very immoral things 
A debauched person would be perfectly willing to allow others 
whatever vicious gratification they might desire, provided 
they allow him to go on as he chooses ; and, on the other 
hand, man rises highest when he is willing to make sacrifices 
to others which he does not desire others to make for him, 
when he frees himself from all egotism. Nevertheless, the 
law will be found of great practical use if applied with good 
faith, for the very reason that it seeks for the regulator of 
actions in our self-interest, and, therefore, comes practically 
home to a greater number of people than any other law that 
could be devised. The law is especially important with re- 
gard to actions towards others, and includes all that belong 
to justice. 

The great philosopher Kant has expressed it scientifically 
thus : " Consider constantly and without exception the intelli- 
gent being as being its own proper end and which can never 
become a simple means for the ends of another;" and by this 
other formula : " Act always in such a manner that the imme- 
diate motive or maxim of thy will may become a universal 
rule in an obligatory legislation for all intelligent beings." 
This fundamental moral law Kant calls, in his philosophical 
system, the categoric imperative, because it demands without 
proof, and every intelligent being must acknowledge its ne- 
cessity, the justness of the demand. 

We find in Tobit iv. 15, " Do that to no man which thou 
thyself hatest." One of the fundamental Chinese works,* 

» This passage is taken from Tshung Yung (or Invariable Middle), one of the 
four Chinese works called by the Chinese The Four Books, or The Books of the 
Four Doctors. See Abel Remusat, Nouveaux Melanges Asiatiques, Paris, 1829, 



MAN'S INDIVIDUALITY. 57 

written about 453 before Christ, contains this dictum: *' He 
who is sincere and attentive to do nothing to others which 
he would not like them to do to him, is not far from the law; 
he who desires that nothing be done to him which he him- 
self does not to others." — "Therefore all things whatsoever 
ye would that men should do to you, do ye even so to them." 
(Matthew vii. 12.) It will be perceived that this moral law is 
nothing else than the abstraction or generalization of the 
primary ethic consciousness spoken of in sec. xiii. chap. ii. 
of this book, manifesting itself in a feeling " he ought'' Man 
probably becomes conscious of this ethical "he ought" in 
perceiving the acts of others, and, by natural generalization, 
is bound, again with the assistance of his ethic consciousness, 
to include himself in the abstraction by which he arrives at 
the above law. 

XXIII. Man's whole ethic character is materially founded 
upon or can be imagined only in conjunction with his indi- 
viduality. Man's individuality and sociality form the two 
poles round which his whole life revolves. Of the latter — the 
peculiarity in man that he can fulfil his destiny in a state of 
society with others only, and that he has to bear weal and 
woe, jointly with his fellow-creatures — I shall have to say more 
in the second book. As to his individuality, it is necessary 
to observe that man is what he is, first and essentially, as an 
individual. His senses, perceptions, thoughts, pleasures, pains, 
emotions, his reasoning, appetites, and endeavors, are indi- 
vidually his own, as much as his eating, respiration, digestion, 
are individually his own. Philosophically speaking, he can- 
not act through another;^ his acts are his own ; for if he be 



vol. ii. p. 112. — The Invariable Middle treats in thirty-three chapters of the middle, 
a sort of moral state towards which all human actions ought to have a tendency, 
and which alone is compatible with the inspirations of heaven, the objects of na- 
ture, the voice of reason, the dictates of wisdom, and the practice of virtue. The 
author of this work was the grandchild of the great Confucius ; he died, sixty-two 
years old, about 453 before Christ. His surname as philosopher is Ts^e-sze, 
translated by the missionaries into Interpreter of Holiness. 

" "When we say in common life, " he acts through an agent," we mean, philo- 



58 ETHICS IN GENERAL. 

forced to do anything against his will, he does not act in the 
philosophical sense of the term, but he suffers, is in a passive 
state. Action presupposes free agency. Man's responsibility 
IS his own, for his reasoning and acting are his own. Fault, 
crime, virtue, excellence, goodness or immorality, are his own, 
and belong exclusively to the individual. Words have either 
a sense or not. If the words Accountable or Responsible 
signify anything, they involve the idea that I might, and, if I 
have acted wrong, ought to have acted differently, which pre- 
supposes free will and individuality. For if my hands are 
bound I cannot be accountable for not assisting a fellow- 
creature in distress, nor have I free will except with regard 
to myself, because my volition is confined to myself, whom 
God, for this purpose, has constituted as a definite individual. 
" God, who will render to every man according to his deeds." 
(Rom. ii. 6.) " Single is each man born ; single he dieth ; 
single he receiveth the reward of his good, and single the 
punishment of his evil deeds." Ordinances of Menu, translated 
by Sir William Jones, London, 1799, ch. iv. p. 240, or page 
19 of vol. iii. of Sir William Jones's Works, 4to edit. 

He alone that wills acts, and he that acts is responsible. If 
a man lets loose a tiger upon a multitude, knowing the nature 
of the tiger, he is the murderer of all whom the tiger may 
kill, and the maimer of all whom he may lacerate and wound. 
For the tiger is bound, following simply its sensualism, but 
the man is free. 

Trite as these remarks may appear if thus clearly and 
separately stated, they have been by no means always ac- 
knowledged either in religion or law. 

XXIV. The penal codes of all civilized nations recognize 
mdividual indictments and punishments only. No body of 
men, corporation,or society can be arraigned for a penal offence, 
though each and every individual may have borne an active 



sophically speaking, that he himself acts, and by thus acting induces his agent to 
act likewise, so that there are two acting individuals. No action without indi- 
vidual. 



NO CRIME WITHOUT INDIVIDUAL. 59 

share in it, because, as has been stated in the preceding sec- 
tion, responsibility is and forever must be inseparably con- 
nected with individuality. A body of men may be sentenced 
to damages ; for they may civilly form a so-called moral 
person in the eye of the law, that is to say, a society with 
certain peculiar civil rights and obligations common to all 
the members; but no ethic idea is connected with such a 
damage, and the, whole body cannot be sentenced to imprison- 
ment for a crime, though each individual member may. Those 
only who committed the crime, e.g. by voting for it, or having 
a hand in executing it, can be made responsible. Thus, a 
merchant is not liable to punishment because his partner com- 
mitted forgery, though closely connected with the commercial 
transactions of the house. Confusion of ideas, which in the 
course of civilization almost always precedes clear distinc- 
tion, as well as a desire of revenge, have often induced man 
to act upon opposite principles. An interesting instance of 
this confusion of ethic ideas will be found below.^ When the 
Robespierrian Committee of Public Welfare was brought to 



* The following appeared to me so remarkable an instance of deviation from 
the principle that all morality is inseparably connected with individuality, that 1 
have felt induced to give it here. I was lately in the island of Porto Rico when 
a case occurred, which, whatever low idea we may entertain of Spanish admin- 
istration of justice, still remains most surprising. An American and the chief 
partner of a commercial house in one of the sea-ports was absent on a journey, 
when his junior partner received, by way of pay, several packages of maccacuina 
money. Without counting them, or examining their value, he passed them off 
again in the regular course of business transactions. This is done every day. 
At that time, however, a large importation of spurious maccacuina had been 
made, and the counterfeit money began to circulate. It was strongly suspected, 
and perhaps more than suspected, that persons high in authority had shared in 
this foul transaction, and they were now desirous of fixing the guilt on some 
individual or other who had not participated in the crime. Be this as it may, a 
witness tes'.ified under oath that he had received a package with counterfeit mac- 
cacuina from the junior partner of the house mentioned above. He declared 
that he had passed the package as he had received it, which is done every day, 
as I have stated already, and that he could prove that he had done so. This 
declaration was of no avail. It was said. You have passed the counterfeit 
money, no matter where you got it or how you passed it. This was one step in 
the affair. The next was, the declaration, or assumption, that the gentleman ir 



6o ETHICS IN GENERAL, 

condign punishment, Carnot, though one of its members, was 
exempted. 

When it is said, a state or nation is made answerable for 
some wrong done to another nation, the term is not used in a 
strictly ethic sense. Wars cannot be undertaken for the sake 
of punishment, speaking accurately; because wars can exist 
between independent states only, one of which, therefore, has 
no right to punish the other, which would presuppose a lawful 
power over it. 

Punishment in this case means merely a resorting to that 
means which the warring nation considers as the most suit- 
able to prevent a recurrence of wrong or to obtain restitution. 
A similar sense must be given to the word punishment, when 
whole provinces or any entire body of men are said to be 



question had done so as junior partner of the house ; the third step, that the senior 
or chief partner is the most proper representative of a commercial house; and the 
fourth step was, that the latter was arrested, on his return from a journey, for the 
alleged crime of his house having passed, and therefore probably imported, the 
counterfeit money. Nor was this the rash act of some ignorant officer, but the 
gentleman remained a considerable time imprisoned, and was not finally released 
on the ground that he could not possibly be answerable even if a crime had been 
committed by his junior partner. The monstrosity of the transaction shocks 
every one, even if he had never before clearly represented to his mind that vir- 
tue or crime, in short everything of a moral character, is essentially connected 
with individuality. No wonder that Spain and all former Spanish colonies are 
suffering from endless political convulsions, if the people grow up with such utter 
confusion of the most elementary notions. — Napoleon made the parents and near 
relations answerable for the desertion of the son or relative from the army. Bad 
as this measure was, it was never pretended, at least, that the responsibility for the 
act of desertion could possibly be separated from the individual who ran away; 
but it was adopted by way of bare expediency. It was believed it would induce 
the soldier, who otherwise might have no interest to stay, e.g. when he was from 
some German conquered department of the empire, not to run away ; the parents 
or relatives were held as hostages. The Chinese code continually makes the 
father answerable for the son's crime, and in many cases the whole family is pun. 
ished and even put to death for the offence of one. — They have a maxim that a 
married woman can commit no crime ; the responsibility rests with her husband : 
Davis, u. s. ii. ; chapters on the code, i. p. 282. — [Dr. Lieber, in another paper, 
remarks that none but individuals can be responsible for penal offences, and cites 
Ch. J. Raymond as saying, in 1730, that while a warden was answerable civilly 
*or the acts of his deputy, he was not criminally.] 



NO CRIME WITHOUT INDIVIDUAL. 6 1 

punished, for instance, by the imposition of a fine, or the 
withdrawal of a charter. 

That in such cases the innocent have to suffer with the 
guilty, is the reason why nothing but absolute necessity should 
induce men to resort to these measures ; and when absolute 
necessity of doing so exists, it affords only one more proof 
that man is imperfect, a being who cannot, in many cases, mete 
out the due reward to the guilty without affecting at the same 
time the guiltless. We are finite, and have to regulate our 
actions accordingly; while the consciousness of our frailty, 
our finiteness, and the consequent deficient character of all 
human justice, will lead us to a still firmer belief in a perfect 
and supreme being, whose justice is perfect and absolute ; 
who can be just without affecting the innocent. If we con- 
template for a moment the essential character of justice, 
founded upon man's accountable character, and this again 
upon his individuality, we see at once that if man is unable to 
act out these principles, this very fact is one more proof of his 
imperfect nature; but it is a gross mistake to use that which 
is only the effect and proof of human imperfection, in order 
to explain, by way of analogy, preconceived and erroneous 
notions of the Deity. I cannot pass this remark without 
adding that analogy, if used as proof and not simply as illus- 
tration of what has already been proved, in matters relating 
to the Deity, is presumptuous and necessarily of a dangerous 
character, since it induces man to do that to which he feels 
ever too much inclined in his limited and finite sphere — to 
ascribe to the Deity his own finite attributes. Bishop Butler, 
in his work on the Analogy of Natural and Revealed Re- 
ligion, appears not always to have escaped this fallacy. 

The individuality upon which all accountability or respon- 
sibility is founded, shows at once the crying injustice of all 
punishments which extend beyond the offender farther than 
their mere effect, according to the social existence of man, is 
unavoidable; for instance, by way of affliction of respectable 
parents at their son's disgrace, or the misery of a wife caused 
by the imprisonment of her husband, or the diminution of the 



62 ETHICS IN GENERAL. 

inheritance of children by a fine imposed upon their father. I 
mean punishments such as confiscation of all property, civil 
disgrace of whole families, attainder of blood. 

XXV. All ethic attributes of man are inalienable. He can- 
not, even were he desirous of doing so — and his wickedness 
in doing so would be equalled only by the absurdity of the 
desire — deprive himself of his moral character. Do what he 
may, or let others attempt what they choose, man does not 
and cannot become a non-moral or un-ethical being. He 
cannot barter away his reasoning power for whatever con- 
sideration ; for every moment that he adhered to such a com- 
pact, he would have to exercise his reason. Nor can others 
possibly deprive him of it, though they may greatly limit its 
action; he cannot alienate his free will and decide to be guided 
entirely by some one else. He must decide for himself, his 
conscience tells him so ; nor can others fetter his will, which 
belongs to man's rationality. He cannot bargain away his 
conscience and responsibility, because he shall and must be 
responsible, for he is not bound in his will and real action. 
He cannot submit to absolute obedience in whatever sphere 
this may be, because he cannot, if he choose, get rid of his 
ethic attributes, and he cannot divest himself of his individu- 
ality, and therefore others cannot take his ethic responsibility 
upon themselves. There it hangs suspended over every 
single soul, " Thou art a human being, and, therefore, respon- 
sible, consequently thou must reason and will; and thou hast 
reason and conscience, and, therefore, art responsible." No 
power on earth can obliterate this fundamental principle from 
the table of ethic laws. As thou eatest and drinkest for thy- 
self, so thou actest for thy own soul. What man is in mind and 
body, first of all he is as an individual. Yet he was not made 
to be selfish, and his Creator connected him with his kind by 
a thousand ties — by sympathy, love, friendship, and by the 
mysterious attachment growing out of the difference of sexes > 
he led him to the foundation of the family, which became the 
first starting-point of moral cultivation, and the hearth on 



ETHICAL EXPERIENCE. 63 

which the flame of a thousand things that are sacred and 
noble burns with its holy fire. 

It is this difference, that every human being has a moral 
character of his own, and that consequently, as we have seen 
above, we ought in no instance to make another human being 
merely the tool of our ends and objects ; and that the animal 
is a non-moral being, a thing — from which we derive our 
justification of killing animals for food, or, still more, of sub- 
mitting them to great pains and suffering for the sake of 
science, the right to which will not be denied, though we all 
feel that it ought to be resorted to with the utmost care, not 
forgetting the painful feelings of the great physiologist Hal- 
ler, in the evening of his life, at all the suffering he had in- 
flicted on animals. Not a slave, nor even a criminal, becomes 
a non-moral being, and it is immoral to experiment upon 
criminals, should they be subjected thereby to sufferings.^ I 
know of an instance where the surgeons of a regiment dis- 
agreed on some point of anatomy, and an officer promised to 
provide them with a subject, by ordering his soldiers to shoot 
one of the enemy's outposts. The officer did not do so, yet 
he was officially censured even for his promise. 

XXVI. Though, however, it is engraven in every heart 
that we ought to do right and not do wrong, and though the 
simplest intellect will be ready to acknowledge our obliga- 
tion to obey the fundamental moral law, as given above, yet 
its application to the endless variety of cases which ofler 
themselves through life requires experience in a twofold 
way. It is often easy to find the abstract truth, but difificuit 
indeed to apply truth ever the same to ever-changing reality. 
Experience. is required: 

I, Because in many cases doing right means nothing more 



« * " The servant, nay, even the slave, is not bound to obey, and moreover ''a 
not excusable for obeying, the unlawful commands of his master." Letter of B. 
W. Leigh, then Senator of the U. S. from Virginia to the General Assembly ct 
Virginia, March 2, 1836. 



64 ETHICS IN GENERAL, 

than selecting that which experience has shown to be Ihe 
best. If we find that a certain action, measure, or step, though 
in itself entirely indifferent, has invariably or generally pro- 
duced evil consequences, we act immorally if we disregard 
the result of experience, and we act likewise immorally if we 
neglect making ourselves acquainted, to the best of our 
powers, with this result of experience. As all politics are in 
a great measure dependent upon experience, and consist 
both of the abstraction of general ideas from numerous indi- 
vidual cases, and the application of abstract ideas to ever- 
changing cases of practical life, it is clear that judicious 
application of well-understood and honestly consulted experi- 
ence forms a most important part in all ethical relations 
applied to politics. Some acts are strictly moral or immoral, 
others belong to the sphere of wisdom and foresight {aotpia and 
evXd^sta). The line between the two, in many cases, can 
hardly be strictly drawn, or, if it could, it would be of no use, 
as the one is as important as the other.^ 

2. Experience is requisite with regard to the habit, practice, 
skill, exercise, and application which we have to acquire in 
applying the science of morals. It is in ethics as in the science 
of medicine: the science gives to the physician the general 
rules ; but how to combine them, and that with rapidity, for a 
given case, which consists of a number of simple cases, singly 
treated of by the science, and each modified by the othei", 
practice alone can teach. Wherever a science is to be applied, 
the art is requisite in addition to the science ; and who is there 
that has lived sufficiently long to gather experience and does 
not acknowledge that an ethical skill, or art, is requisite in 
life ? Who would deny that moral practice is indispensable 
for the numberless cases of duties conflicting with each other? 
The art of fencing teaches us the exact position of the hand, 
the single and well-defined thrusts, and how to direct them to 
one small particular spot. No one who does not learn these 

« " Be ye therefore wise as serpents, and harmless as doves." (Matt. x. 1 5.) 
Life is short, hut art is long. Hippocrates, 



VARIOUS ETHICS. 65 

elements of the arts well can ever hope to become a skilful 
swordsman ; yet the art cannot teach all possible combina- 
tions, or substitute any rule for the quick discernment and 
rapid judgment which, in the twinkling of an eye, knows how, 
almost instinctively, to apply the elementary rules which have 
become like a second nature to the hand, or finds with 
rapidity resources in the powers of combination well trained 
for this particular art. So can no system of morals dictate 
what is to be done in each case. No one will expect that a 
book can or ought to do that for which, indeed, we are placed 
in this world, — the acting as moral beings. 

Knowledge of morals alone, without practical skill, will 
lead to moral pedantry, an adherence to single truths at the 
expense of others — an error the more to be shunned, as those 
who commit it, and suffer in consequence of it, are apt to 
consider themselves as martyrs of morality or truth. This 
is especially the case in politics, in which it is so easy to single 
out one truth, one maxim, one principle, and to follow it up 
unconcerned about other equally important ones. It is gen- 
erally the choice of weaker and less comprehensive minds, 
and may lead them to a variety of injurious acts and crimes, 
though under plausible forms. History is full of these exam- 
ples. Generally the most essential points which opposed 
parties claim are true enough in themselves. But it is not 
sufficient that we acknowledge a truth ; we have conscien- 
tiously to endeavor to know the truth. Skill, without a 
knowledge of morals, degenerates into mere expediency, an 
equally great and dangerous defect in morals. 

XXVII. Having acknowledged the first principle in ethics, 
that man has an inalienably moral character and cannot by 
his own consent or the force of others become a non-moral 
being, various systems of ethics may be established. Not that 
what is once proved to be immoral by one system can be 
shown to be moral by another, but we may build up different 
systems according to the different ways which we may pursue 
in arriving at settled ideas and defined notions with regard to 

5 



(£ ETHICS IN GENERAL, 

morals, or according to the main subjects to which we apply 
ethics. 

We have already seen, from the etymology of the word 
ethics, what way the Greek nation has pursued in arriving at 
clearer ideas in ethics, and finally combining them into one 
system. Common sense, common justice, common interest, 
soon leads men to certain customs, to observe certain rules, 
without which intercourse and mutual understandino^ would 
be impossible. These customs in real life formed a subject 
for reflecting minds, to find out that which is stable in them, 
and why it is stable, as contradistinguished from what is vari- 
able, accidental, unessential. " From ancient times, men have 
found out what is good and right; from which we ought to 
learn. And one of these things is, that every one consider 
well what properly belongs to him." (Herodotus, i. 8.) This 
has been the course with all nations. Common sense neces- 
sarily precedes the science. See a very true passage on the 
meaning of words which common sense gives them, and which 
science at a later period strives to ascertain and express, in Mr. 
Guizot's General History of European Civilization, Lecture I. 

As ethics first thus gather what by common sense has been 
established among men, so may ethical systems be raised upon 
the moral precepts deposited in some other way, for instance 
in religious or civil codes. Thus, we have Christian ethics, 
i.e. a system of morals founded upon the moral precepts con- 
tained in the Bible ; we have even evangelical Christian ethics, 
which means a system of morals founded upon the Bible 
when this code is taken and understood in the way peculiar 
to Protestants.^ In a similar manner we have to understand 
the expressions Mahometan, Homeric, Hindoo ethics. 

Ethics are general ; but by applying them to some promi- 
nent situations or important characteristics of man, e.g. his 
social character, we obtain special branches or systems of 
ethics. 



« For instance, a work by Professor Schwarz, at Heidelberg, entitled Ethics 
of Evangelic Christianity. 



CHAPTER IV. 

Man, a Being having his own End and Purpose, or an Ens autoteles. — Natura*' 
Law, — Its only Axiom. — Its Object. — Difference of Natural Law and Ethics. 
— Science of Politics. — Disastrous Consequences of confounding Natural Law 
and Politics proper. — Good Faith necessary wherever Man acts. — Political 
Ethics. — Its relation to the other Sciences which treat of Man. 

XXVIII. We have seen that every man, as man, has his 
own ethic worth and value ; he is in this respect not only his 
own object, but in consequence of his reason and free will he 
can and ought to make himself the conscious object of his 
own activity ; in other words, he shall consciously work out 
his own perfection ; that is, the development of his own 
humanity. For this reason man has been called by the old 
philosophers ens autoteles [ens, being, autoteles from ahxoq, self, 
and r^/lo<r, end), a being that is consciously its own end and 
object, to distinguish him from other animals. This, as is 
evident, is again indispensably connected with man's indi- 
viduality. Ethics having established these points, it is the 
object of another science, natural law, or, as others have called 
it of late, e.g. Mr. Rotteck of Freiburg, rational law, to show 
the rights which man has according to his inherent, inalien- 
able ethical nature. 

XXIX. Every science, even mathematics, has to start from 
some axioms, that is, from truths which must be either sup- 
posed to have been proved by other sciences, or are self- 
evident in their nature. The very meaning of proof involves 
its starting from and relying on previously acknowledged 
truths. For every syllogism we want first two terms, to make 
our conclusion ; the axiom therefore is a truth the convincinsf 
and binding power of which we cannot help acknowledging 
without the logical process of deriving the conclusion from 
the term and middle term. 

67 



68 POLITICAL ETHICS. 

It appears to me that the only axiom necessary to estab- 
lish the science of natural law is this : *' I exist as a human 
being, therefore I have a right to exist as a human being."' 
This once acknowledged, the rights of men in their various 
relations as individuals, husbands or wives, fathers or mothers, 
as citizens individually and collectively in the state to other 
independent states and to the collective citizens within the 
state, may consistently and justly be established. Though 
some ancient and modern writers have maintained that no 
right exists antecedent to the magistracy, deriving the right 
of this from some extra-political, and in some cases even from 
some extra-human, source, it is nevertheless true that, if we 
do not deny our own existence and the existence of truth, the 
reality and truth of natural law can be scientifically and irre- 
sistibly established with as much certainty as that of other 
sciences. Spinoza (Epist. 74), who, it will be admitted on 
all hands, might be charged with anything rather than too 
great a readiness to admit unwarranted truths, justly remarks, 
" Quomodo autem id sciam si roges, respondebo, eodem 
modo ac tu scis tres angulos trianguli aequales esse duobus 
rectis, et hoc sufificere negabit nemo cui sanum est cerebrum 
nee spiritus immundos somniat, qui nobis ideas falsas inspirant, 
veris similes." 

Natural Law, then, inquires into the rights of man to be 
derived from his nature, both physical and moral, for the latter 
is closely connected with the former; it inquires into quid sit 
justum ant injustum^ not into quid sit juris (what is law or law- 
ful). The word nature is a term used in so many various signi- 
fications that it has led to great confusion of ideas in several 
branches ; and it is not an uncommon mistake to believe that 
natural law is that law which existed in the erroneously sup- 
posed state of nature, on which, as has been indicated already, 
1 shall have to dwell in the next book. The law of nature, or 
natural law, on the contrary, is the law, the body of rights, 



* [It being, of course, understood what a human being is in all his relations, 
and what ought to take place when those relations are disturbed.] 



NATURAL LAW. 69 

which we deduce from the essential nature of man. It is, 
therefore, equally erroneous to contradistinguish or oppose 
natural law to revealed law, for the latter can only be founded 
upon the former, since by the nature of man we understand 
that imprint and essential mode of existence which he re- 
ceived from the hands of his Creator. They cannot conflict. 

Nor are natural law and moral law or ethics the same. The 
difference is material. Ethics treats, among other subjects, 
of the duties of man, and secondarily of his rights derivable 
from his duties ; natural law, on the other hand, treats, as the 
fundamental and primary subject, of man's rights, and second- 
arily of his obligations flowing from the fact of each man's 
being possessed of the same rights. This distinction, though 
essential, has been and to this day is frequently overlooked. 
An equally good name with that of natural law might be 
abstract law or pure law, as we have pure mathematics. 

XXX. Natural Law having ascertained and established 
that which is right from the nature of man, it is the subject 
of another science to ascertain the best means of securing it, 
both according to the result and conclusion of experience, 
and the demands of existing circumstances. I would call 
this branch politics proper. An instance or two will illustrate 
the subject. If natural law shows from the fact of every man's 
being a moral being, who has his own end and worth, and 
from the consequent impossibility of his becoming a non- 
moral being under whatsoever circumstances, or of losing his 
individuality, that the state must offer protection to every 
one, or must cease to be a state so far as he is concerned who 
is denied to have a right to derive any advantage from it ; or 
if it shows that all men are equal in this respect, that each 
one has his own ethic worth, and that this equality forms the 
only true foundation for justice; it would, on the other hand, 
be a question of politics proper to ascertain how the many 
ends of true justice are to be obtained. If natural law estab- 
lishes the general right to property, namely, that it is founded 
in the unalterable and indispensable nature of man that exclu- 



^O POLITICAL ETHICS. 

sive possession of things belonging to the material world 
should be vested in individuals or individual societies ; it is 
for politics proper to ascertain whether, under certain given 
circumstances, this general right of property is best secured 
by representative governments, by the trial by jury, by un- 
limited possession, or by revertible titles, as was the case in 
the Mosaic law; whether the general principle demands, under 
the given circumstances, that the accumulation of property as 
well as its division should be unlimited, or whether it is wise 
to prevent division below a certain standard, as is the case in 
Sweden and some other countries, or prevent accumulation 
beyond a certain limit, as Solon prescribed. The whole great 
question of constitutions, with respect to everything that is 
not strictly a principle of natural law, e.g. protection of per 
sonal liberty, of freedom from molestation as long as no wrong 
is done, of a degree of protection extended even to the evil- 
doer and while we bring him to punishment, belongs to the 
present branch. Shall we have two chambers, or one, or 
three separate estates, or four ? How long shall the member- 
ship of the upper house continue ? for six years, as in the 
United States, for ten, or for life, as has been the case in 
France ? Who shall bestow it ? Once bestowed, shall it be 
hereditary, as in England, or shall the house consist of some 
hereditary peers and others holding the place for life, as in 
Holland, Bavaria ? Shall prelates belong to it ? Does not 
the crown increase its influence if it has the right to make 
peers for life only, because the opportunity of conferring the 
peerage returns more frequently, and the whole body feels 
more dependent upon the crown ? Does the increased inde- 
pendence of a hereditary peerage upon the crown promise on 
the whole more advantage to the people by uniting with them 
against encroachments of the crown, or disadvantage by con- 
tinued opposition to cherished measures of the people ? Is it 
advisable to have female monarchs, where monarchy is neces- 
sary ? Are they or are they not in their nature, as belonging 
to the weaker sex which is universally excluded from public 
business, peculiarly jealous of their rights, suspicious of oppo- 



NATURAL LAW, 



71 



sition, and high-toned in holding on to their prerogatives ; 
and, if so, are the advantages to be derived from an order of 
succession which includes females greater than the disadvan- 
tages ? Which mode of voting promises the greatest advan- 
tage, that by ballot or by open votes ? By which mode is, 
after ail, greater independence and a less degree of intrigue ob- 
tained ? Is an election of electors best, or a direct election ? 
Shall judges be appointed for good behavior, or for a limited 
time? What shall form the basis of representation, property, 
number, education, or a combination of them ? When shall 
a man be of age ? Is it good that the executive be dependent 
upon the people for supplies ? Ought the crown to have a 
distinct crown treasure ? On which side are the greatest ad- 
vantages, where the executive ministers are members of one 
of the houses, and if so, where they have a vote or not, or 
where they are excluded, as in the United States ? How is 
the appointing power of the executive to be limited ? How, 
altogether, is the ^reat problem of giving sufficient and yet 
not too much power to the executive, to be solved ? All 
these questions cannot be solved on absolute grounds ; it is 
experience alone, soundly viewed and impartially applied to 
existing circumstances as well as the principles ascertained 
by natural law which can guide us respecting these subjects, 
many of which are, nevertheless, of vital interest. 

The confusion of natural law and politics proper has pro- 
duced evil, and not unfrequently disastrous consequences. On 
the one hand, men have seen that, without establishing firm 
and absolute principles, all would be confusion and insecurity. 
On the other hand, they have been so far misled by principles 
drawn from natural law, as to judge every political question 
by theory alone, disavowing experience, expediency, and a 
due regard to the elements which were given wherewith to 
work. The impossibility of proceeding in this way never 
fails soon to be felt, and the very disowners of expediency or 
the necessity of making measures practical have committed 
the most tyrannical outrages, not unfrequently founded alone, 
and acknowledgedly so, on absolute expediency as preparatory 



72 POLITICAL ETHICS. 

for that perfect state to be founded upon absolute theory. 
Such men we find in the Jacobins in France, whose ab- 
solute theory was what they called philosophy; and in the 
early Scottish Presbyterians, whose absolute theory was their 
notion of divine government/ Again, men felt that the 
abstract principles of natural law were insufficient to guide 
them in many practical cases, and they fell into the error of 
rejecting it altogether, relying only on power as the founda- 
tion of all right, on mere expediency as the sole guide of 
political action. 

Analogous to the term abstract law for natural law, we 
might call this branch applied law, which would include both 
political, civil and penal law, in as far as it remains general. 
The existing law is called positive. 

XXXI. Wherever the application of a principle or rule is 
required, whenever an abstract principle passes over into 
practical life, conscientious action is requited, or it will fail to 
obtain its object. No prescription or form of words, no law 
or institution, can serve as a substitute for this essential ele- 
ment of human action. It is therefore necessary to ascertain 
by what moral principles we ought to be guided in certain 
specific political cases, and what it is that experience points 
out as the wisest course for a conscientious citizen, under the 
law and in relations established by the two former sciences. 
And this branch in particular I call political ethics. 

If, for instance, politics proper establishes that, for certain 
purposes and under certain circumstances, it is necessary that 
the votes of the members of a state ought to be taken, but 
that the law ought to leave it to the option of each citizen 
whether he will vote or not, it belongs to the province of 
political ethics to ascertain whether every citizen is morally 
bound to vote under all circumstances, and, if not, to point 
out the cases when he ought to vote, not according to the 



* See Brodie's excellent History of the British Empire, e.g. in vol. i. the dis- 
cussions between James I. and the Scottish Presbytery. 



POLITICAL ETHICS. 73 

law, but in conformity with his moral obligations as a good 
citizen ; when he need not, and, finally, when he ought not to 
vote. 

If the former branch establish that general rules of action 
or laws must be established wherever a society exists, and 
that these laws ought, of course, to be obeyed, for without it 
they would not be general rules ; and if, at the same time, 
that branch has to define the subjects on which society may 
or ought to legislate, and those on which no general rule 
ought to be given ; it belongs to the department of the branch 
with which we shall occupy ourselves, to ascertain the cases 
when, or laws which we may disobey and those we are 
morally bound to disobey. If we find that in free countries 
an opposition to the administration is not only advisable, but 
highly desirable, political ethics must show how far a con- 
scientious citizen may go in his opposition. 

That in many cases it will be difficult to ascertain with pre- 
cision to which of the two branches a subject belongs, is clear; 
as there is no absolute line of demarcation for any science, 
except that of mathematics, which circumstance gives so 
great advantages to the science, and again confines it within 
so narrow limits. Nor has this uncertainty any injurious 
effect; for if the subject be but fully, philosophically, and 
conscientiously treated, it does not matter so much where it 
is done. 

What has been said of the necessary combination of pru- 
dence with what is strictly ethical on its own ground, in 
general ethics, finds most ample application in this particular 
branch of applied ethics ; in no branch of morals, indeed, so 
much so as in this. With Themistocles, every citizen ought 
to advise on what is prudent; with Aristides, on what is just 
and good. 

XXXII. Political ethics would apply to municipal political 
relations as well as to international relations. But inter- 
national law, as Mr. Bentham has more significantly called 
what before him was styled the law of nations, forms so dis- 



74 POLITICAL ETHICS, 

tinct a branch of natural or positive law, according to the 
point of view which may be taken, that I hope the critic will 
excuse me if, at least for the present work, especially calcu- 
lated for less mature readers, I drop the subject of ethics as 
applied to international intercourse, and occupy myself solely 
with ethics as applied to municipal political relations. Yet I 
would guard myself against a suspicion that I undervalue the 
moral element in the intercourse between independent states 
No one can have studied history without coming to the con 
elusion that morality is of urgent expediency in the inter- 
course of nations, even were we not bound on higher grounds 
to acknowledge our ethical obligations, which never leave us, 
even in these international relations. The few truly mag- 
nanimous international acts which history records have, I 
believe, failed in no instance to produce the most beneficial re- 
sults, while the age of diplomatic cheat and trickery brought 
misery over all Europe. What had Louis XIV. gained, 
towards the end of his days, by an unusually long and active 
life of political fraud, faithlessness, and immorality, which 
totally disregarded justice or the sacredness of engagements ? 

XXXIII. If we wish to assign the proper rank to what I 
mean by political ethics, among all the sciences whose sub- 
ject is man, it would be this : man can be considered as he 
is, or ought to be, and as he has been ; again, individually 
or socially ; again, physically, morally, or intellectually. In- 
dividually, physically as he is, man forms the subject of 
anatomy, comparative anatomy, physiology, etc., or medicine. 
Socially, physically and as he is, by political economy. Indi- 
vidually, morally, as he is, and ought to be, by ethics, the 
science of education, etc. Individually, intellectually as he 
is, by the philosophy of the mind, or, according to English 
terminology, by metaphysics. Socially, according to the 
relations of right, as it ought to be, by natural law, politics 
proper, etc. ; as it is, by diplomacy, positive law, etc. Socially 
and morally, by political ethics. Socially and intellectually, 
by the science of national education, or, in general, national 



POLITICAL ETHICS. 75 

civilization. The two relatione of time as it is and as it has 
been, together with the ethic re /ation, as it ought to be, give, 
applied to law for instance, the positive or existing law and 
the history of law ; natural law and theoretic politics. 

All right, as we have seen, starts from the moral character 
of man, and ethics, again, applied to man's political relations, 
has to shed light upon the many relations within the con- 
fines of the law, upon those actions which the law leaves 
wisely to the judgment of the citizen, and which yet are of 
great importance to the whole well-being of the common- 
wealth. I repeat, it is this branch of applied ethics which I 
call political ethics. 



CHAPTER V. 

Does Political Ethics deserve to be treated separately ? — Can Ethics be applied to 
Politics? — The People at large ought to know their Political Duties. — Political 
Ethics is no^ for the Statesman alone. — Demoralizing Effect of a Politically 
Debased Society upon the Individual. — Political Ethics especially important 
in Free Countries. — Attempts of Governments and Nations to justify Public 
Crimes, which proves that Men agree that public Acts ought to be founded on 
Ethic Grounds. — Ethics cannot be applied to Politics precisely as to Private 
Relations. — Mere Expediency; mere Theory. 

XXXIV. If it has thus been shown what place in the chain 
of sciences political ethics occupies, and what forms the subject- 
matter of this division of ethics, it remains for us to answer 
two questions : 

1. Though they may be important, are they sufficiently so 
to be treated separately? for in a similar way we might sepa- 
rately discuss family ethics, or forensic ethics, meaning by the 
latter a system of duties concerning the citizen in a forensic 
character, as judge, juryman, lawyer, even as witness, informer, 
or prosecutor. 

2. Is politics really a subject to which ethics can be ap- 
plied ? For it cannot be denied that the actions of many 
persons indicate that, according to their opinion, little con- 
nection exists between the one and the other, or that, accord 
ing to their desire, little ought to exist. 

XXXV. As to the first, whether political ethics forms a 
branch of sufficient importance to be treated separately, we 
must refer to the next book, by which it will be seen that 
man, or at any rate the least elevated races of his species, can- 
not exist without the institution called the state, because he is 
essentially a social being, according to his animal propensities 
and organization as well as his intellectual faculties and moral 
characteristics. Yet a man may be a dutiful son, a loving 

76 



ITS GENERAL IMPORTANCE. 



77 



brother, a kind husband, a judicious father, a faithful friend, a 
charitable neighbor, industrious in his calling, a sincere well- 
wisher to his species, and still he may omit a strict perform- 
ance of his duties as a citizen. He may even boast of his 
political apathy. So that it appears necessary that we should 
know all our civil obligations. Whenever nations have risen 
to a high degree of civilization, they have reflected on the art 
of government, the principles of legislation, and the origin and 
object of the state ; wherever man has omitted to do so, he 
has relapsed into barbarity, or never elevated himself above 
it. Man cannot be what he ought to be, without the state, 
and nations rise by wise laws ; never do they maintain them- 
selves, after having risen in an elevated position, except by 
good laws and sound institutions supported and carried out 
by active patriotism. Europe on the one side, Asia on the 
other, form the mighty commentaries which history has writ- 
ten and continues to take down upon these truths. There 
is no nobler sight to contemplate, no object more invigor- 
ating to dwell upon, than a man of manly energy and wisdom 
welded and wedded in vivid patriotism to his country, living 
and laboring faithfully, in glory or difficulty, honored or mis- 
judged, wisely, firmly, steadily, and devotedly, for his people. 
No one contemplates a Turgot, De Witte, Sir John Eliot, 
Washington, Epaminondas, Chatham, without feeling the 
better, the more reassured for it. 

XXXVI. Many subjects, however, though useful or neces- 
sary to some, are not so to every one. Political ethics may form 
a very proper branch for a leading statesman, or the citizen 
who makes a profession of politics, yet ought it to be well 
understood by everybody? Is it, in particular, necessary to 
instruct the young in it? I believe it is most emphatically 
so. It is every man's business to know his duty, and his 
duties as citizen are among the most sacred and important, 
especially so in countries which enjoy civil liberty and have 
what is commonly, though inaptly, called a free government. 
The success of the whole depends upon the whole ; and 



78 POLITICAL ETHICS. 

there is no subject connected with the state which does not 
vitally affect the interests of every one. Laws and institutions 
are nothing more than dead forms of words, unless they operate. 
Constitutions do not create liberty ; political welfare cannot be 
decreed or effected by an edict or statute. Liberty must grow 
and live, live in the heart of every one, not only as an ardent 
desire or an indefinite though exciting notion, but as a knowl- 
edge of our political obligations and a profound reverence for 
political morality. No William of Orange can free his coun* 
trymen from the Spaniards, no Thrasybulus can rescue his 
city, no Solon can make her prosper, though the laws he 
gives were inspired, if they find not support in every bosom ; 
if there be not the chord to vibrate in unison with them ; if 
the mass of citizens are not willing to follow, because the 
leader acts right and wisely. The wisest statesman is in this 
respect but like the poet. He cannot delight, elevate, or in- 
spire, unless the elements to act upon are in the hearts of the 
hearers. He cannot make new truths, and, if he could, how 
could he gain entrance for them into the hearts of the people 
who were wanting in the very sense to perceive them ? But 
he can boldly and strikingly pronounce what until then was 
but dimly felt in the soul of the hearer, or latent though 
unperceived in his heart. So can the statesman clearly pro- 
nounce and boldly act out or gradually cultivate what was 
but vaguely felt by the masses ; he can concentrate what was 
scattered, awaken what was dormant, impel, regulate, restrain ; 
but he cannot create his elements. Harrison, in his Political 
Aphorisms, says, " The people cannot see, but they can feel." 
Tf so, it is the duty of the statesman to see, and his foresight 
cannot be acknowledged unless the people feel right and 
are well instructed. The freer a country, that is, the more 
action is guaranteed to every individual, the more necessary 
becomes a well-founded and general knowledge of political 
duty. Without it, that free action will serve but for evil ends. 

XXXVII. No doubt can be entertained but that there are 
at all times, among millions, some individuals endowed with 



ITS GENERAL IMPORTANCE, 



79 



great gifts, with talents equal to those of the eminent and 
successful men of happier periods, but they cannot make and 
construct a state and breathe into it the inspiration of life, 
nor can they guide it by the noblest principles, if the people 
do not correspond to their exertions, or if the times do not 
call upon them. And what are the times but the acts of the 
people ? Was there not in all Italy one great soul left at the 
times of the emperors, not one who at the fairer periods of the 
republic would have won the civic crown ? 

XXXVIII. The state is so intimately connected with nearly 
everything which concerns man, all our interests are so closely 
interwoven with its weal, that it cannot prosper, or fail of being 
a source of injury, without a faithful and correct discharge 
of duties on the part of every citizen. The state — the greatest 
institution on earth — elevates everything that appertains to it, 
every duty, interest, or measure, into great importance, for the 
simple reason that it affects all, and, what with its direct and 
indirect operation, it very materially influences the moral well- 
being of every individual. Cicero justly acknowledges the 
sacredness of this institution in the sight of God, when he 
says, ** Nihil est enim illi principi Deo, qui omnem hunc mun- 
dum regit, quod quidem in terris fiat, acceptius, quam concilia 
et coetus hominum jure sociati, quae civitates appellantur." 
(Somn. Scip., c. 3.) The state (with its laws and government) 
affects materially the manhood of all living in it. Good laws 
elevate man ; bad laws, if persisted in for a series of years, 
will degrade any society. Unfortunately, history and the 
existing state of many countries prove this truth so abun- 
dantly that it is useless to instance any facts. Mr. O'Connell's 
speech. House of Commons, April 28, 1837, on the Irish Poor 
Law Bill, respecting crime and poverty in his native country 
as the effect of bad legislation, is worthy of all attention. 

It is one of the greatest blessings to live under wise laws 
administered by an upright government and obeyed and 
carried out by good and stanch citizens ; it is most grateful 
and animating to a generous heart, and a mind which cheer- 



8o POLITICAL ETHICS. 

fully assists in the promotion of the general good, or salutary- 
institutions. It greatly contributes to our self-esteem if we 
live in a community which we respect, among fellow-men we 
gladly acknowledge as fellow-citizens. Many of the noblest 
actions which now adorn the pages of history have originated 
from this source of inspiration. On the contrary, we feel our- 
selves humbled and dispirited, we find our own views con- 
tracted and our moral vigor relaxed, we feel deprived of that 
buoyancy without which no manly and resolute self-posses- 
sion can exist, it wears off the edge of moral sensitiveness, 
when we see ourselves surrounded by men with loose 
political principles, by a society destitute of active public 
opinion, which neither cheers the honest nor frowns down 
immoral boldness; when we hear of bribed judges, perjured 
officers, suborned witnesses, of favor instead of law, and can 
perceive only listless spectators, without any opinion of their 
own, any spirit of veracity and trustworthiness or mutual 
dependence. Moral susceptibility gradually vanishes ; the 
feeling becomes daily more blunted ; for everything in society 
has a reciprocal effect. What is effect to-day becomes cause 
to-morrow. Hence the rapid downfall of empires when once 
corruption and depravity begin ; evil begets evil ; the suc- 
ceeding generation is worse than the preceding one, until final 
dissolution follows, or a combination of happy and extraneous 
circumstances produces a sudden change, which, in the nature 
of things, cannot be frequently the case. Read the history 
of Rome for proofs of this. We see, therefore, the great im- 
portance of imprinting deeply on our mind sound principles 
of public morality ; and when can this be done to greater 
advantage and with more certain consequences than in our 
youth ? If Erasmus says, " At bonus princeps esse non po- 
test, qui non idem sit vir bonus," his remark has equal force 
and truth if you substitute civis for princeps. (See his Instit. 
Principis Christiani, page 583, B, vol. iv. of his Opera Omnia, 
Leyden, 1703.) 

If this knowledge has been of much importance wherever 
nations have attained to anything like wise and lasting insti- 



ETHICS AND POLITICS. 8 1 

tutions, it is peculiarly so in modern times. For one of the 
main and characteristic differences between ancient states — I 
mean the Greek and Roman — and modern ones is this, that 
in antiquity the state nearly absorbed the rights and interests 
of the individual, and public attention was directed far more 
towards the preservation of the whole than the protection 
of the individual. Politics, however, established according to 
the point of view which is taken in modern times, places the 
protection of the individual, the individual rights of man, in 
the most prominent position among all the objects of the 
state. This point will be more fully discussed in the next 
book. What has been said, however, suffices for the present, 
to indicate the peculiar importance which in modern times 
the individual, as such, occupies in the state, and the conse- 
quent necessity of a sound knowledge of everything that 
concerns him with regard to the relation he bears to the state. 

XXXIX. As to the second question: Is politics susceptible 
of being treated in an ethical point of view? the answer is 
simply this : Either the state, and all the institutions and laws 
which have emanated from it, exist for the satisfaction of an 
ambitious and interested or privileged few, or the state is an 
institution for a distinct moral end, or politics is the effect 
of mere chance. One of the three must necessarily be the 
case. The first is so repugnant to every man's feeling, as well 
as to common sense, that none have ever dared publicly to 
acknowledge it, however they may have been inclined to 
act on some such view. If man is a rational being, the state 
must have a rational end, i.e. it must be founded in reason, 
which would not be the case were it a mere contrivance for 
the benefit, or rather the satisfaction of the desires and ap- 
petites, of a few. For science would then have to single 
out the few, and establish scientifically their claims. None 
can possibly be above reason. " Popes and kings, therefore, 
should seek a reason above their own wills." (Wiclif, in one 
of his sermons. See Webb le Bas, Life of Wiclif, New York, 
1832, page 193.) And not only popes and kings should do 

6 



82 POLITICAL ETHICS. 

so, but every man, the politician, leader, orator, general, presi- 
dent, or whatever his station, employment, or aim may be. 
" Res publica est res populi" (Cicero, de Rep., i. 25), and 
Augustin, de Civitate Dei, v. 18, enlarges it: "Res publica. 
id est res populi, res patriae, res communis." Whatever is 
founded in reason cannot have an immoral end ; it vi^ould be 
a contradiction in itself. A very great statesman, Oxenstierna, 
wrote, indeed, to his son, " Nescis, mi fili, quam parvula sapi- 
entia regitur mundus," when he encouraged his hesitating son 
to take charge of an important embassy; but, though this is 
unfortunately often the case, it is not necessary on this ac- 
count that it should be so, either in the intercourse between 
nations or in municipal politics. Common sense has long 
decided the matter ; for when has there, in modern times, a 
declaration of war been issued which did not endeavor, at 
least apparently, to seek for a just cause of war — one founded 
in reason ? On the other hand, we hear nowhere more of 
virtue, and all the moral feelings of man more frequently ap 
pealed to, than in politics, even in those times when political 
notions are in the greatest confusion, nay, then perhaps most 
vehemently. Marat and Robespierre, Reubell and St.-Just, had 
the name of virtue always on their lips. Does this not show 
abundantly that all men are well agreed that the state, and 
consequently all politics, do not admit of immorality? Does 
any man ever appeal to our generosity and virtue when an 
entirely non-ethical act is to be performed, for instance, the 
building of a railroad ? Exceptions, indeed, there exist, but 
they remain exceptions, and are rare. Thus, a most distin- 
guished member of the French chamber of deputies pro- 
nounced, in the year 1831, from the tribune, that France 
ought to make war, for a new dynasty ought to surround 
itself with glory — which, to be sure, supposed that the war 
must needs end victoriously for France. Charles Gustavus 
of Sweden said, when he treacherously broke the peace of 
Roskild (concluded in 1658) because success had incited his 
thirst for farther aggrandizement, that after the conquest he 
would easily prove his right, and that there is always a just 



PUBLIC ACTS MUST BE MORAL. 83 

cause for war, as soon as there can be found a realm or prince 
who is incapable of resisting. (Raumer, History of Europe 
since the Fifteenth Century, vol. v. p. 387.) 

XL. Still, it must be remembered, these are but exceptions. 
Look at the hypocrisy studiously carried through so long a 
life as that of Louis XL of France. During all the protracted 
iniquitous transactions of the Castilian government against 
the Moriscos, the former will always be found desirous of 
glossing over its own actions with the appearance of justice. 
While Lerma persecuted these unhappy beings with studied 
cruelty in 1609, the king spoke of mild and tender means 
(suaves y blandos ; in a letter of the king to the "Sworn" of 
Valencia, dated September 11, 1609, to be found in Raumer's 
Letters, etc., vol. i. p. 214).^ When one of the blackest crimes 
that soil the pages of history, the massacre of St. Bartholo- 
mew, had been perpetrated with unexampled treachery, cruelty, 
and disgusting vice and villany by Catherine of Medici and 
Charles IX., on August 24, 1572, the king, after a long and 
cold-blooded consultation between his wicked mother and 
Anjou, as to the invention of the best means of justifying 
themselves (Tavannes, xxvii. 275), proceeded on August 26 
to parliament, and there added to this stupendous wrong the 
solemn lie, after having heard high mass, that all had been 
done to save themselves from a vast yet timely-discovered 
conspiracy of the Huguenots. Their bodies were weltering 
in blood and could not gainsay the falsehood; but on August 
24, the day of the carnage itself, the king and queen sent a 
declaration into all the provinces that the whole had been 



* This act of treacherous crime, and, with regard to the physical welfare of 
Spain, of egregious folly, has been represented in its true light in Raumer's 
History of Modern Europe, already quoted in the text, where most of the sources 
of the history of this protracted act of cruel perfidy may be found. Mr. Cape- 
figue, a French writer, considers, in his work entitled Richelieu, this act not so 
shameful nor so absurd ; but his defence is a poor piece of special pleading. So 
was the massacre of St. Bartholomew called, in 1824, by the ultra-royalist papers, 
une rigueur salutaire. / 



84 POLITICAL ETHICS, 

done against their will by the Guises. (Thuanus, 1. ii. 9, 10.) 
Nay, though Philip II. of Spain celebrated this event by the 
performance of a drama representing the Triumph of the 
Church Militant, and Pope Gregory XIII. ordered a solemn 
Te Deum to be performed in the church of St, Louis, Charles 
IX. or his wily mother found it necessary to order, even two 
months after the bloody deed, the torturing and execution of 
an old nobleman, Briquemant, and of Cavannes, one of the 
royal councillors, as having been accessories, so that the 
appearance of truth as to a Huguenot conspiracy might be 
kept up. (Walsingham, iii. 228 ; L'Art de verifier les Dates, 
ii. 191; Serres, 451.) 

The most striking instance of the pressing necessity of 
justifying public acts is perhaps offered by Louis XIV., who 
used to handle fraud like algebraic letters. He, who had a 
clerk of the department of foreign affairs hung for having 
betrayed state secrets, and at the same moment sent money 
to the privy secretary of the Spanish prime minister to buy 
his secrets, — he, whose minister De Lionne wrote to Cheva- 
lier de Gremonville, French ambassador at Vienna, " The 
king finds that you are the most impudent minister on earth ; 
but in this piece his majesty bestows upon you the highest 
possible praise you can wish for;"^ — this same king, who 
broke treaties while almost in the act of concluding them, 
who never hesitated at cruelty or falsehood if expedient, still 
was obliged to pay his tribute, in the cloak of hypocrisy, to 
political morality. 

All the endeavors of this monarch in foreign politics were 
directed to this sole object, to place a branch of his house 
upon the throne of Spain, after the extinction of the Austrian- 



* Mignet, N^gociations relatives S. la Succession d'Espagne sous Louis XIV, 
pr^c^dees d'une introduction et accompagn6es d'un texte historique, 2 vols. 
8vo, Paris, 1836. Mr. Guizot, while minister, caused the abundant sources of the 
French archives to be used for historic publications. The title of the whole work 
is: Collection de Documens in^dits sur I'Histoire de France, publics parordre du 
Roi et par les soins du Ministre de I'lnstruction publique — of which valuable 
publication the above forms a part. 



PUBLIC ACTS MUST BE MORAL. 85 

Spanish branch should have taken place. Neither time nor 
money, patience, cunning, treachery, deceit, and fraud, nor 
corruption of any kind, was spared. The road to this great 
object was opened as early as in the treaty of the Pyrenees, 
for even then all possible precautions were resorted to in 
order to nullify at the proper time all the renunciations which 
Maria Theresa, a Spanish infanta and wife to Louis XIV., had 
been obliged to make with regard to the Spanish succession 
at the time when her marriage-contract was formed. The 
French cabinet proceeded systematically to collect all sorts 
of pretences, to use them at the desired period.^ Why did 
not the French cabinet quietly wait until the death of the 
Spanish monarch, and then strive to place a French prince on 
the Spanish throne by mere force of arms, without alleging 
one lawful reason ? Because there is that mighty voice in 
every man's bosom which tells him that there is such a thing 
as right and wrong, and that, though it may be in our way, 
though the individual may have made up his mind to disre- 
gard this difference, he knows the world will not, — nay, more, 
that by openly proclaiming this disregard he would take away 
the only ground upon which a claim could be made ; for a 
claim presupposes a right; a right presupposes the ethical 
ground upon which it must rest. Animals have no right 
towards each other, because non-ethical creatures; but we 
have rights and duties. 

The Indians of South America appeared to the conquering 
Spaniards to be possessed of but very inferiof claims when 
compared with their own. Not even the common laws of 
humanity were considered sacred towards the aborigines, and 
yet did the Spaniard feel the necessity of some justification 
before his own conscience ; even his cruel conquest he wished 
to found upon some right, some moral basis. From the time 
of Alonzo de Ojeda a manifesto in Spanish was read to every 
newly-discovered tribe, in which, at great length, the rights 
of the pope, as vicegerent of God, were exhibited, how he had 



» See note on page 84. 



S6 POLITICAL ETHICS. 

presented the Spanish crown with all the Americas, and how 
the Indians, therefore, owed allegiance to it, and a refusal of 
which would be visited by extirpation. The manifesto had 
been drawn up with great care by the united effort of divines 
and lawyers.^ 

Frederic the Great found it necessary to justify himself 
respecting the part he had taken in the unhallowed partition 
of Poland. When provinces or colonies rise against their 
mother-countries, they issue justificatory manifestoes; the 
sultan, some years ago, published an elaborate justification of 
the conduct of his government towards the Greeks. And it is 
to be remarked here again, that the more civilized the nations, 
the more they acknowledge the necessity of vindicating their 
acts on ethical grounds. The rude alone make their sword the 
tongue of the balance of justice, or bow without murmur to 
the stronger. 

XLI. Men have felt at all times that the unchangeable 
principles of morality are not applicable to domestic and 
foreign politics precisely in the same manner as in private 
transactions or family relations. To demand letters not 
directed to us, in a way that is calculated to deceive the per- 
son who possesses them, in order to induce him to give them 
up, and then to publish those letters, would be considered, in 
ordinary cases, no very honorable act indeed. Yet who is 
there at present, American or Englishman, that would blame 
Dr. Hugh Williamson of Pennsylvania for the manner in 
which he obtained the dangerous and treacherous letters of 
Governor Hutchinson of Massachusetts Bay, from an officer 
in London, who supposed him to be an officer of the British 
government himself, judging from his positive demand, when 
the superior clerks were absent from the office? and who 
blames Dr. Franklin for publishing them ?=^ Did the Gueux, 



» The document is to be found in the appendix to Washington Irving's Voy- 
ages and Discoveries of the Companions of Columbus. 

» The manner in which Dr. Franklin obtained these important letters, which 
caused so much excitement at the time they were published, in 1 772, and for 



/ 



ETHICS AND POLITICS, 8/ 

in 1566, in the Netherlands, act wrong in stopping the mes- 
senger from the Spanish ambassador Alava at Paris, to Mar- 
garet, governant of the Low Countries, and in searching his 
despatches, by which they at length obtained incontrovertible 
evidence of King Philip II. 's sinister and revengeful plans? 
This amounts, however, to nothing more than that circum- 
stances exercise always their influence upon the application 
of ethical principles. I never heard any one blame Columbus 
for making use of an eclipse, in the year 1 502, to deceive the 
natives of Jamaica, in order to induce them by fear to con- 
tinue to supply him and his crew with food, when that great 
man was shamelessly abandoned by the Spaniards in his colo- 
nies, who ought to have honored him most, wrecked in the 
saddest condition of health and with a mutinous crew.^ 

These instances, then, prove in no manner an absence of 
the moral element in politics. If such acts were not justifi- 
able on other grounds than merely because they were political 
measures, they would not be justifiable at all. There was 
actually a time when, in Italy for instance towards the end 
of the middle ages, ethics was almost totally discarded from 
international intercourse, which in consequence became 
nothing more than the merest calculation of expediency. 
Such contemptible means as vanishing ink were resorted to 
in diplomatic affairs.'^ As to municipal politics, some men 
have boldly avowed that " all means are fair in politics," not 
in times of revolutionary disorder, but of profound peace and 
social prosperity; not in the ardor of debate, but in print; not 
at that age of Italian expediency when the holy host would 



which he was violently assailed, was a secret which he faithfully took with him 
to the grave. Dr. Williamson avowed the fact to James Read, of Philadelphia, 
who communicated it to Dr. Hosack, of New York. See his biographical 
memoir of H. Williamson, in vol. i. of Hosack's Essays on Various Subjects 
of Medical Science, New York, 1824. The great simplicity, boldness, and yet 
sagacity of the scheme add much to its interest. 

^ See Washington Irving's Life of Columbus. 

« I have not mentioned in this place Macchiavelli, probably as some readers 
might expect; I take a very different view of this great man, which I have giveu 
in the article on him in the Encyclopaedia Americana. 



88 POLITICAL ETHICS. 

be used to convey poison to the lips of the communicant, 
but of late, in our times, in our country. Yet in a similar 
way have men asserted, and in printed works too, therefore 
well weighing what they said, that all means, the foulest not 
excepted, are fair for the promotion of religion.' If we may 
give up ethics in one thing, we may do so in all ; the princi- 
ple is the same ; and Charles V. when he refused the offer 
made by the baker of Barbarossa to poison his master, though 
he was an outlawed pirate,^ or Fox when he informed the 
great enemy of England that offers had been made to the 
British government to assassinate him, acted but as a poor 
politician. Not so, I trust.3 

It is one of the chief objects of this work to show how the 
principles of ethics are applicable to politics. If there is at 
present in some countries so great a confusion of ethico 
political ideas that the observer would well nigh lose his 
hope, let us not forget that nations may rise from a state of 
political torpor or immorality and assume a station worthier 
of the nature of man. Who would deny that England of 
to-day stands, as to politics and public political opinion, far 
above the times of Charles II. and the political corruption 
under James II. ? Who would deny that France has polit- 
ically improved, if we compare her as she is, with the times 
of the Regent and of Louis XV. ? Who can deny that the 
probity of the papal church government has vastly improved 
since the times of the Reformation, if we compare it to what it 
was under the popes of the fifteenth century ? 



» " Let the women who complain of the vices or ill humor of their husbands 
be instructed secretly to withdraw a sum of money, that by making an offering 
thereof to God they may expiate the crimes of their sinful helpmates and secure 
a pardon for them." Secreta Monita Societatis Jesu, ix. i6. 

2 Charles said, " I conquer my enemies with arms, not with fraud and treach- 
ery." Sandoval, Historia de la Vida y Hechos del Imperador Carlos V., ii. 243. 
Vera, Epitome de la Vida y Hechos del Emperador Carlos V. , 71. 

3 * Boyer (Political State, 1719, vol. ii. 344) mentions that Paul Miller, a pri- 
vate trooper, offered to Secretary Craggs to assassinate the Pretender. Craggs 
informed the Lords Justices, who ordered his dismissal and procedure against 
him with the itmost severity. See Mahon's England, i. 523. 



ETHICS IN POLITICS, 89 

What minister of state would now dare to take a pension 
from a foreign monarch, or what judge a present or bribe ? 
Yet nothing was more common, perhaps, all over Europe, in 
the seventeenth century. 

Much, however, seems yet in an unsettled state. Very 
doubtful, and, at times, decidedly immoral, principles are 
publicly, sometimes unwittingly, proclaimed. Our task is to 
proceed in this branch as mankind proceeded with regard to 
ethics in general. Let us gather what is acknowledged as 
stable, let us ascertain why it is so, and on these principles 
rest our further conclusions. 



CHAPTER VI. 

1 )oes Religion or Common Sense dispense with Ethics in Politics ? — Htime*s 
View of Common Sense. — What is Common Sense ? — It does not dispense 
either with a proper Knowledge of Politics and Ethics, or with constant Exer- 
tion and much Industry. 

XLII. Political Ethics has not appeared to many per- 
sons in as important a light as it otherwise would, had not 
false reliance been placed upon religion and common sense ; 
both of which are as important in politics as in any other 
sphere of human action ; but they do not dispense with 
morals in politics any more than anywhere else. As to the 
distinct sphere of religion, and the effects of confounding it, 
from whatever cause or motive, with politics or matters of 
right, and especially of taking the Bible, a code of religion 
and morals, for a political code, I must refer the reader to 
the sequel of the work. It is a subject which requires the 
calmest investigation. Respecting common sense as the sole 
guide in politics, the following is the view I take. 

XLIII. Hume, in his Essays, vol. ii. p. 246, says, "Though 
an appeal to general opinion may justly, in the speculative 
sciences of metaphysics, natural philosophy, and astronomy, 
be esteemed unfair and inconclusive ; yet in all questions with 
regard to morals, as well as criticism, there is really no other 
standard by which any controversy can ever be decided. 
And nothing is a clearer proof that a theory of this kind is 
erroneous than to find that it leads to paradoxes, which are 
repugnant to the common sentiments of mankind and to gen- 
eral practice and opinion." No one will deny that this is true 
in a great degree, yet it requires very much to be limited, or 
we should have in matters of taste as well as ethics the most 
unsettled standard. First, as to the words " mankind" and 
90 



COMMON SENSE. 9 1 

** general practice," they are vague. All mankind cannot be 
meant, for the diversity of opinion as to details is very great, 
both at different ages and at the same time. The African 
slave-trade, now declared by all Christian nations a piratical 
crime — Portugal, the first power who introduced it, abolished 
it last by a decree of December 10, 1836, and Texas sprang 
into existence almost with a declaration of its iniquity on her 
lips, which had but just pronounced her independence — was 
once a "general practice," and Roscoe, the pride of Liverpool, 
was hooted by that very community on his return from Par- 
liament in 1807, for having voted for the abolition of that 
traffic (page 290, vol. ii. of Life of William Roscoe, Boston, 
1833). Is then meant by mankind our peculiar race or tribe, 
or our nation, or our community, or whatever other repre- 
sentative of mankind be taken ? If so, we shall find that in 
many cases what is a paradox with one nation is very far from 
being so with another. Respecting paradoxes themselves, we 
have only to remark that every great truth, when first pro- 
mulgated, sounded paradoxical to the multitude. When the 
Eastern philosopher first called upon his followers to do good 
even unto enemies and to be like the sandal-tree which sheds 
perfume upon the axe that fells it, no doubt it appeared very 
odd, as we have the proof that Christ's precept to love our 
enemies was but a paradox according to the " general prac- 
tice" and opinion of" mankind." There was a time when the 
idea that the people are after all the great and true fountain 
of power, or that they should have the right to criticise the 
acts of government, was nothing more than an odd paradox. 
It was decidedly repugnant to the general feeling of mankind 
in antiquity and the middle ages that the man " disgraced by 
labor" should in any way stand equal to those who did not 
labor. To gainsay it would have appeared as a mere paradox. 
When the French rules of taste prevailed, it was a sheer para- 
dox to prize a glowing lyric or pathetic ballad of the middle 
ages more highly than cold and stately declamation expressed 
in formal alexandrines — nay, to value Shakspeare higher than 
Racine or Voltaire. There was a time when it was an abso- 



92 



POLITICAL ETHICS. 



lute paradox to esteem the grandeur and slender gracefulness 
of Gothic edifices anything more than the architecture of a 
barbarous age. I do not make use of instances such as are 
afforded by witchcraft, or the ideas of free trade, and a thousand 
others, which sufficiently prove that we could not easily err 
more dangerously than by adopting the "common sentiments 
of mankind" as our sole guide, unless we have good reason 
for doing so. The instances which have been cited are taken 
from morals and criticism, the spheres for which Hume gives 
the rules. Yet, on the other hand, nothing can be more way- 
ward, and even arrogant, than to set up private opinion, judg- 
ment, and feeling on all occasions, against general opinion or 
what has been sanctioned by successive generations. Proper 
limits are to be observed : the present chapter, as well as that 
on public opinion and the Political Hermeneutics, will, I hope, 
either show them or aid in drawing them with greater dis- 
tinctness. 

XLIV. For the present I have to do with common sense 
only. What is common sense ? It appears to me that the 
word is used in different meanings, two of which appear as 
the most important. It either expresses a peculiar species of 
judgment, which I shall designate more accurately, or that 
which has been settled as right, proper, allowable, by the 
aggregate judgment of a community or successive genera- 
tions. In the latter sense it must be taken when Guizot says, 
" it is good sense which gives to the words their common 
signification" (he might have said, " it is practical life which 
necessarily forms, shapes, extends, and contracts the meaning 
of words), "and good sense is the genius (spirit) of mankind." * 
In this case common sense is not without a close connection 
with public opinion. 



* The original is, *' C'est le bon sens qui donne aux mots leur signification com- 
mune, et le bon sens est le g^nie de l'humanit6." (Hist. g^n. de la Civilisation 
en Europe, Lecture I.) Degerando, in his Comparative History of the Philo* 
sophical Systems, in French, calls, vol. i. p. 312, common sense: vulgar (he 
ought to have said common') reason indeed, yet practical. 



COMMON SENSE. 



93 



The phrase common sense has come down to us from the 
ancient philosophers and those of the middle ages. Intelli- 
gentia communis expresses more what we now mean by com- 
mon sense. Sensus communis was with the schoolmen the 
communis radix et pnncipium extenorum sensuum. (See St. 
Thomas, Summa Theologica, pars prima primae partis, quest. 
Ixxix.). With us, common sense — called in German gesunder 
Menschenverstand^ i.e. literally, sound human understanding, 
in French, bon sens, i.e. good sense — means, I believe, if duly 
investigated, sound practical judgment (i.e. that sound judg- 
ment which guides us in acting), unaided by any art or sys- 
tematic train of argumentation, but sharpened and cultivated 
by practical life. That it be sound involves its being unwarped 
by prejudice (be this individual, territorial, clannish, etc.), pas- 
sion, fancy, fear, or anything else; but sound native sense alone 
is not common sense-; it is only the foundation. Native sense 
must have been invigorated or practised by practical life, to 
become common sense. An Indian who has never lived 
among the whites might be possessed of much common sense 
among his red brethren, but it would be necessary for him to 
live among civilized people, and to learn how to apply his 
native sense to their practical life, before we could ascribe 
common sense to him.^ 

XLV. The term " common" is not used in this connection 
to indicate that common sense is of peculiarly common occur- 
rence, but to express its relative position to the cultivated 
intellect, searching and comprehensive reflection, elevated 
reason, or expanded genius, as well as that its exercise is 



» Archbishop Whately gives the following definition of common sense, in tht 
preface to his Elements of Logic, and likewise in his Introductory Lectures on 
Political Economy : " Common sense is an exercise of the judgment, unaided 
by any art or system of rules." This definition seems to be deficient; for com 
mon sense cannot be an exercise, an action, it must be a faculty; and it would 
include genius, — which, in the case of a young general, finds vast and new re- 
sources, unaided by any system of rules, — as well as the humblest intellectual 
effort of an idiot 



94 



POLITICAL ETHICS. 



daily called for by the common occurrences of life. When 
common sense is well versed and practised, and judging for 
the given present case only, we call it tact. Tact is instinct- 
ive, practical judgment ; and by instinctive I do not mean, 
in this case, a species of practical judgment implanted, ready- 
made, by nature, but that judgment which has been so well 
practised by experience as to operate in ordinary cases so 
rapidly that we are ourselves unconscious of the operation. 
From these remarks it will plainly appear that no man can 
dispense with a degree of common sense, not only as being 
requisite for the common concerns of life, but likewise for 
the application of any rules, whether scientific, religious, or 
aesthetic. The divine, without common sense, acts as inju- 
diciously as the most learned lawyer, the most gifted poet, or 
the best-bred physician with a similar deficiency. 

The more we move in a sphere of action, such as politics 
eminently are, the more important strong common sense be- 
comes. We want it always to apply our rules, to fix on the 
proper limits beyond which any rule transcends its own 
spirit, to select the proper means of action, and to discover 
the true wants. But indolence, arrogance, ignorance, and 
cunning alone pretend that common sense suffices for all 
the many intricate and momentous questions in politics, es- 
pecially when, what is frequently the case, people mean by 
common sense little else than something given to man in a 
finished state, which requires no cultivation or practice, but 
decides intuitively always right, as the dog which searches 
for truffles stops where these plants are deep beneath the 
surface of the earth. 

XLVI. There has always existed a class of flatterers who 
tell the unlettered that common sense is sufficient to pene- 
trate the subjects which cannot be comprehended but by 
patient study and faithfully gathered experience. There are 
books the titles of which promise to teach the art of riding 
perfectly, or to speak French completely, in two hours. I 
have heard a professor of philosophy publicly assert that 



COMMON SENSE, 95 

nothing but what could be made plain to the intellect of a 
child was worth anything in philosophy, and that the greatest 
truths of philosophy could be made thus plain. How or why 
I have never learned. Why not the same in all other far less 
abstract sciences ? I have heard " the unsophisticated, un- 
educated minds of people who sit under their own vine and 
fig-tree," publicly flattered. Sophistry is very objectionable 
indeed ; but cultivation of mind is not sophistry, and an un- 
cultivated mind, I mean uncultivated by the times, the general 
civilization we live in, the life of the individual, etc., is a very 
rude thing. Look at the unsophisticated New Zealanders. 
The world was not made for the indolent ; the active rule. 
We have to work faithfully, to learn honestly, and gather in- 
dustriously, that we may learn to do right. We must not 
minister to one of the worst dispositions, by telling the idle 
that they have to learn nothing, that the cultivation of the 
mind is useless. This flattery, however, has nowhere been 
so much resorted to as in politics. Courtiers have told young 
monarchs that they are far above learning and studious 
application, and demagogues have told the people that com- 
mon sense is sufficient for everything. Do we navigate by 
common sense, or by observations taken skilfully and regu- 
larly ? Do we cultivate the ground by dint of common sense, 
or by all the experience of century upon century stored up 
in agriculture, and applied, not without common sense as a 
matter of course ? There have always been prominent men 
without learning; but because Napoleon conquered Italy 
when twenty-seven years old, or Alexander, Asia, before his 
thirtieth year, is there no art of war, no science of tactics ? 
And, above all, were their minds cultivated or not ? Besides, 
we are often greatly mistaken respecting the time and in- 
dustry bestowed by those who have excelled on their pecu- 
liar subject. At times this appeal becomes peculiarly danger- 
ous, because all men are but too apt to consider that to be 
plainly pointed out, to be proved by common sense, which 
we see, nevertheless, much distorted by our peculiar state of 
feelings or prejudices. As to whether "plain common sense" 



96 POLITICAL ETHICS. 

be sufficient to grapple with law questions, see what I say on 
Interpretation in Political and Legal Hermeneutics. 

XLVII. I cannot conclude this chapter without adding one 
more remark, which is not without its application in politics 
and law. It is a common and nevertheless capitally erroneous 
notion, that the uncultivated in any art or science are the best 
judges. A picture may be very poor indeed and yet be mis- 
taken by children or animals for reality. It is an observation 
of frequent occurrence ; and he who told first the well-known 
anecdote of Apelles, or repeats it, to prove how well the 
Greeks painted, because the birds flew at the painted grapes, 
shows that he knows little about the art. Nothing is easier 
than to make even wild beasts mistake coarse imitations for 
real animals. No uncultivated mind loves music which con- 
sists of anything more than loud and various sounds. Pure 
harmonious music not unfrequently pains the savage. Nature 
has no charm for the uncultivated, except perhaps by way of 
roving in the open air. But the starlight sky, the moon sil- 
vering the vast expanse of a rippled ocean, the richness of thick 
foliage interwoven with slender flowers, the grace of the blade 
and the strength of the oak, have no charm for the so-called 
natural man. The most picturesque scenes of England were 
considered no better than barren, unpleasant spots, even at 
the time of Lady Montagu. (See her Letters, late edition 
by Lord Wharncliffe.) So we are told that the truly great in 
the moral world will never fail to strike the uncultivated. It 
is radically wrong ; only we must not confound cultivation of 
soul with school education, which may or may not be bad, or 
with the distortion of the mind — the effect of vitiated times. 
Life and times also educate. It is true that that which is 
essentially great, beautiful, good, strikes that in us which is 
essentially human, and therefore will strike generally, i.e. be- 
yond the bounds of nations and ages, as the works of Praxit- 
eles, or a noble deed or delicate trait related by Herodotus, 
will be appreciated forever ; while that which pleases by way 
of fashion sinks and withers with the caprice or mistaken re- 



CULTIVATION INDISPENSABLE. 97 

finement which produced it. Yet it requires due cultivation 
to value it. This mistake is founded upon the still more gen- 
eral confusion of ideas by which rude and uncultivated minds 
are considered as being in a more natural state than cultivated 
ones. More of this in the next book. 

It is very true that men fall in love with what has cost them 
much labor, and many abuses are perpetuated, simply because 
it has given those who ought to effect a reform much trouble 
and perseverance to bring their minds to submit to them. But 
this proves nothing against us. Many excellent law reforms 
have been started by non-professional men, because they saw 
more freely, judged more boldly, felt more deeply. In the 
second book I shall quote a remarkable passage of Lord 
Bacon's on this subject. Yet what they saw or felt or judged 
of they did not perceive intuitively. The nobler anything in 
creation, the more it requires cultivation, development; the 
lower the animal, the closer it is connected with the whole ma- 
terial world around it, the less it acts by volition. The noblest 
object in the scale of our terrestrial creation is the human 
mind, which, considering the degree of perfection which it 
may reach, starts less finished into existence than anything 
else. It may be compared to a few given points or positions 
in the highest analysis, from which a vast solution is to be 
derived. Again, the noblest, vastest, highest institution is the 
state, which for that very reason requires more cultivation and 
exertion of the highest and best powers than any other. His- 
tory abundantly shows that it is the cultivated, not the pe- 
dantically learned, who are the leaders ; the instinctive fear 
of ignorance makes it shun or yield obedience to cultivation. 
The belief that learning trammels the mind for practical pur- 
poses, and especially for politics, is very common ; yet throw 
a glance at the list of the great counsellors of monarchs or 
nations, and select those who have served them best and most 
truly, they have been nearly all hard, honest students ; look 
at such men as Michel I'Hospital, Sir Thomas More, or the 
friar Sarpi, whom Venice, the shrewdest of all republics, ap- 
pointed adviser to the state. Nor shall you arrive at different 



98 POLITICAL ETHICS, 

results if you view the nations of the earth. Greece, which 
stands at their head, did not arrive at that proud historical 
eminence by mere instinctive genius ; see how her great men 
labored and toiled, though no nation probably was at the 
same time more happily gifted; how earnestly her states- 
men as well as artists studied. Think and act, and you will 
influence. 

XLVIII. If we are desirous of doing our duty, we must 
know it; and we cannot know it without an accurate appre- 
ciation of the relations which may call for its exercise. In 
political ethics, therefore, it will be necessary, before all, to 
have a distinct idea of what the state essentially is. I have 
given my views of this greatest institution in the next book. 
I shall be obliged to treat in it many problems properly 
belonging to natural law ; but the reader will find that this 
apparent deviation from the subject strictly before us was 
necessary. We cannot thoroughly discuss and investigate the 
duties of the citizen, for instance, when in the opposition, his 
obligation as to unwise, unjust, or depraving laws, his rightful 
conduct as an executive officer, in a word, all his ethical rela- 
tions growing out of the state, without first inquiring into the 
essence of this institution; and as I cannot, without many 
reservations, subscribe to any extant political theory, I shall 
be obliged to give my own views, before I proceed to treat of 
political ethics proper. 



BOOK II. 

THE STATE. 
CHAPTER I. 

The Law is ever) where. — What is Law ? — Sociality. — Origin of the Family. 
— Of Society. — Everything conspires to lead Men to Society. — Strong and 
natural Ties in Family Affection, Language, Division and Union of Labor. 

I. If you leave your home to take an airing, you may walk 
in security on the side-walk of the street, because you know 
that no rider will disturb you. Who or what prevents the 
people on horseback from making use of that part of the pub- 
lic road ? The law, or, if they were to disregard it, certain 
officers, that is, men invested with authority likewise by the 
law, who have been charged to enforce this among other 
laws. This law, then, protects you. You proceed farther, 
and find these words on the sign-board of a bridge, " Keep to 
the right, as the law directs," addressed to those who guide a 
vehicle. It is a law which commands something. You may 
pass an orchard with inviting fruits; the fence surrounding 
it might be easily scaled, and you feel an urgent impulse to 
slake your thirst with the juicy apples before you ; yet you 
must not do it. Were you to follow the dictates of your de- 
sires, though most natural and perfectly innocent, the law 
would punish you, because it protects the orchard as the 
property of some one else. The law is made already, and 
thus it warns you. A decrepit and poor man is prevented by 
certain officers from asking those persons, who show by their 
dress that they live in ease, to give him from their superfluity 
that which he is unable to obtain by his own exertions ; he is 
taken to a house designated by the law as a home for those 

99 



lOO THE STATE. 

persons who cannot earn their living. You sail on the vast 
ocean, at a great distance from all society ; a man-of-war, per- 
haps belonging to a different nation, thousands of miles from 
your own, bids you to lie to and show your colors. An 
officer comes on board your vessel, asking for your papers, 
and requesting you to go with him on board his own. If 
you refuse to comply with his request you expose yourself to 
vexations, perhaps to danger. It is the law of your land, and 
that observed among nations, which obliges you to provide 
yourself with those papers and to produce them under these 
circumstances. In a foreign port a consul of your own nation 
advises and, if need be, protects you. The law directs him 
to do so. You see an individual depriving another of his life, 
violently and considerately ; yet nobody attacks the one who 
kills, or rescues the other, doomed to die, because the law has 
decided that he should die in this manner — it is an execution. 
The law establishes schools and obliges parents to send their 
children to them. The law assists a poor man to obtain his 
dues from a rich one, and again it protects the rich so that 
the poor shall have no more than their due. A single indi- 
vidual says the harshest things of those in power, yet no one 
molests him, because the law has said that he may do so ; 
and again, there are laws which all or nearly all dislike, or 
declare unprofitable, nay, even cruel, and yet they are obeyed 
unaided by physical force. The law has built highways, 
united rivers, severed mountains ; it takes away property for 
the public benefit, and protects it ; sends expeditions into re- 
mote regions, founds libraries and collections of works of art, 
adorns and beautifies ; takes care that the merchant measures 
with a true yard-stick, and tells him in what money he must 
pay his debts; it condemns unwholesome food, prohibits 
your having more than one wife, punishes public immorality, 
interferes if your occupation disturbs or annoys others, 
obliges you at times to take up arms, at others prevents you 
from using them to avenge the most signal injustice, and at 
others, again, it permits you to use them. What, then, is this 
law, invisible, yet seen in its effects everywhere ? Whence 



WHAT IS THE LAWf loi 

does its binding power flow, that we obey it, even though we 
disapprove of it, and though we are unactuated by fear; 
which interferes with my most natural appetites, may deprive 
me even of the simple right of locomotion and confine me in 
a lonely cell ; gives, divides, and defends, or takes away, prop- 
erty ; assures me that it will carry out my will and dispo- 
sition, even after my death, and defeats my will though dis- 
tinctly pronounced ; protects my life, and yet may demand 
of me to expose it, or may take it under certain circum- 
stances ; prohibits me from avenging wrongs, interferes with 
my own disputes, tells me I must not do a thousand things, 
though I may have a strong desire to do them, or that I 
must do things to which I feel a decided aversion ; in fine, 
which accompanies me wherever I may go, penetrates into 
all relations of men to men, to animals and things, and, what 
is most remarkable, is never intermitted or suspended, but 
continues to act and every day creates new rules and regula- 
tions for man's conduct and his various relations, and with 
unceasing and inexhaustible energy seizes upon every new 
condition of men or things that may spring up ? What is 
this law, that is so closely connected with ourselves and 
everything relating to us that few things, indeed, are out of 
its reach, that it is carried along with every individual into all 
new relations, actions, and operations; which extends over men, 
animals, the fruits of the field, the game and trees of the forest, 
the rocks and minerals in the bowels of the earth; which is 
so inseparable from man that whatever he touches he brings 
under its domain, even the produce of the vast and distant sea, 
in fish, whale, seal, plants, shells, amber, and pearls, and appro- 
priates what the fury of the winds had carried to the bottom 
of the ocean, ownerless as it may be, the moment it is brought 
to light, to human use again ? What is this law? 

Law is the direct or indirect, explicit or implied, real or 
supposed ^ expression of the will of human society, repre- 



* Direct or indirect ^ i.e. by laws which emanate directly from the highest au- 
thority of the state, or from societies founded or permitted to exist by the state. 



I02 THE STATE, 

sented in the state, or, of a part of human society constituted 
into a state. And what is this state ? Whence does this 
derive its all-pervading power, and, more especially, its right 
to this power? How did it originate ? How far does its right- 
ful power extend, or is it unlimited, and is there absolutely 
nothing beyond its reach ? 

n. We have seen, in the first book, that morality neces- 
sarily implies individuality. No virtue, merit, fault, or crime, 
in the strict sense of the term, can be common stock among 
several individuals. There is no accountability without indi- 
viduality. If three men jointly save the life of a fellow-man, 
at the imminent risk of their own, or murder him, that which 
IS good or wicked in these joint actions belongs separately or 
individually to each of them. In the latter case, the death 
of the murdered man was the joint effect of the separate 
actions of three individuals; but the crime, the murder, that 
is, the criminality of the action, is each one's own, provided 
the aid of each in perpetrating the act was equally essen- 
tial in bringing about the criminal act. Simple as this truth 
is, yet there have been people who reasoned in this manner : 
"Since but one murder was committed, and three persons 
jointly effected it, it appears that each one cannot have com- 
mitted a murder, but only part of it," thus confounding the 
effect, that is, the extinction of the life of one human being, 
with the moral action, the murder. As if among the thugs 
in the East Indies, the shumseea, or " holder of hands," were 
not as much a murderer, and as guilty, as the bhurlote, or 
" strangler." 

III. Besides man's individuality, we have now to notice his 
sociality, or the necessity imposed upon him to associate, both 
for the purpose of obtaining ends of the highest importance 
in the physical as well as intellectual and moral world. 



Explicit or implied, i.e. by way of custom, which again may have been acknowl 
edged distinctly or tacitly. (See on Obedience to the Laws). 



THE FAMIL V. 



103 



IV. Of all animals, man is born not only in the most help- 
less state, but the infant requires the care of its mother long 
after it has ceased to derive its nourishment from her, which 
causes not only a physical but also an intellectual education. 
Hence the fact that the attachment between human parents 
and their offspring is far more enduring than between other 
animals. This education lasts so long, the child requires the 
care, protection, and guidance of its parents for so extensive a 
period, that they may have other children before the first is 
able to take care of itself From this circumstance, and the 
continuity of conjugal attachment, which is not, as with ani- 
mals, limited to certain seasons, originates the perpetuity of 
the conjugal union, as well as a mutual attachment among 
the children, while with other animals no connection, or a 
very limited one indeed, exists between the offspring of the 
various seasons. The protracted state of the child's depend- 
ency upon the parents produces habits of obedience, respect, 
and love, and, at a more advanced period, a consciousness of 
mutual dependence. The family, with its many mutual and 
lasting relations, increasing in intensity, is formed. The 
members of a family soon discover how much benefit they 
derive from reciprocal assistance, and from a division of occu- 
pation among them, since man is placed in the world without 
most of those strong and irresistible instincts which are given 
to other animals for protection or support, and which seem 
to increase in specific intensity the lower the animal stands 
in the scale of animate creation, thus approaching more and 
more the plant, which lives without any self-action — an abso- 
lute slave to season, clime, and soil. 

So little is man instinctive, that even his sociality, so indis- 
pensable to his whole existence, has first to be developed. 
He is led to it indeed by the natural relations between the 
progenitors and their offspring, as we have seen ; but he is 
not, strictly speaking, a gregarious animal.^ Gregarious ani- 



' See Cuvier's Le Regne Animal, article Homme, page 69 et. seq of vol, i., 
Paris edition of 1829. The work has been translated. 



I04 THE STATF. 

mals do now congregate as they have ever done ; but man's 
sociahty increases infinitely "with every step he makes in the 
progress of civilization. His sociality is, on this account, not 
the leso natural. We shall presently see the true meaning of 
this term applied to man. 

Man does neither act by instinctive impulses, so numer- 
ous and so strong regarding specific actions, as we find 
them with the brute, nor does he lay the foundations of 
the many institutions which become important in course of 
time, after mature reflection, as if he knew at the time to what 
momentous consequences they would lead. It is a common 
error, which has misled many of the greatest philosophers, to 
ascribe to the free action of ripe judgment and forecast what 
must be derived from quite a different source. Nearly all the 
mistaken notions of the origin of the state can be reduced to 
this fallacy. Mr. Say ^ says, the first men united into societies 



* Tableau ginirale de PJ^conomie des Societis, page 544, et seq., in Say's Cours 
complet d'Economie politique pratique y 3d edit,, Brussels, 1836. 

I may mention another mistake of Say's ; his name stands in this case but for 
a large class of reasoners. On page 545 of the above work and edition, he says, 
the principal object of all human societies is to provide for their v^^ants (by which 
physical wants are meant). How does he know that this is the chief object? 
Because, says he, we find this trait in all societies, rude or cultivated. As an in- 
stance how to proceed in order to find the essential point of any institution and 
to separate it from what may be accidental, he mentions, on a previous page, 
marriage, and argues thus : " We shall immediately see that it is the want of 
nature which induces man to unite with woman, to produce children, and to 
bring them up, in order to see himself replaced by them in the course of time. 
This is the essential in marriage, that which constitutes it." All the rest, as 
ceremonies, etc., he declares as accidental. Does man, desirous of marrying, 
really argue thus? Has he really, at that period, the continuation of mankind so 
much at heart ? Is marriage with most men the effect of reflection ? But we 
waive this, and shall only remark the grossly illogical process of argumentation. 
That which is common to all the species of a genus is therefore the essential point 
of them ! All apples are round or nearly so, all horses have four feet, therefore 
roundness is the essential point of apples, and quadrupedity of horses. Procrea- 
tion is not the characteristic of marriage, for if so then it belongs to all animals. 
It is, among other things, the permanency of this union of persons belonging to 
different sexes, and the exclusiveness (whether monogamic or polygamic), which 
makes the union a marriage ; and its object is far higher than mere procreation, 
which, as we see from the animals, does not require a permanent union. It is 



THE FAMILY. 



105 



to protect themselves and to assist each other in obtaining 
food. This is erroneous : doubtless they soon found out 
that they might protect and assist each other in hunting, fish- 
ing, tilling the ground ; but they were already united when 
they found it out, or they would never, perhaps, have dis- 
covered it. How rare are the instances, and these few only 
at how advanced a period of human society, of a number 
of people congregating together purposely and after well- 
weighed deliberation ! It is fallacious, I repeat, to ascribe our 
knowledge, experience, and views to former, and especially 
the earliest, ages. The ancients were well aware of the fact 
that men had not united into societies by the free consent of 
previously disunited individuals, but were kept together by 
their nature. They went, however, too far on the other side. 
Cicero says, bees do not congregate for the purpose of con- 
structing a honeycomb, but, being by nature gregarious ani- 
mals, combine their labors in making the comb ; and man 
even still more is formed by nature for society, and subse- 
quently as a member of society promotes the common good 
in conjunction with his fellow-creatures. Neither one nor the 
other is the case. It is true, indeed, that man is led to pro- 
mote the final ends of society, to move towards them, long 
before he is fully aware of them ; but he is not, as has been 
stated, instinctively gregarious, nor does he join society in 
consequence of reflection. He is led to do it by his nature, 
physical and intellectual, which gradually unfolds itself with 
every step of progress he makes. By the nature of man is 
understood something very different from instinct, as will 
appear from the sequel. But why did men unite or remain 



the family life, the development of all the fruitful relations within the family, 
and the protection of the female, and education of the young, which form some 
of the essential objects of marriage. The characteristics of marriage are the per- 
manency and exclusiveness of union between individuals of different sexes ; for 
the marriage is marriage though there be no issue. But Say fell into this mistake 
because he adopted the almost universal error of looking backward instead of for- 
ward, of looking to the savage man, yet ascribing to him views and foresight of 
more advanced periods — instead of considering the civilized man and the in- 
variable fruits of civilization, when the problem is to discover man's true nature. 



I06 THE STATE, 

united ? How did they come to congregate, long before they 
were aware or could be conscious of the many advantages 
derivable from association ? Because they could not help it. 
Their nature, physical and moral, their constitution, their 
affections, kept them together, but did not originally lead 
them to it from a state of isolation. Separation is only a 
second step; total and protracted insulation, however, the 
imnatural state of some later periods. 

V. The fact that men remained socially together, lived 
united in a family, caused them to make ample use of the 
organs of speech, so peculiar to man^ — language developed 
itself, the most powerful of all ties. Experience, knowledge, 
acquired skill, could now be transmitted from one to another, 
from the older to the younger, traditionally from one gen- 
eration to another. The same with regard to affections, to 
experience, enjoyments, dangers, sufferance, and supposed or 
really great actions. Language gave continuity to the family, 
tribe, or larger society as such ; by language and its power 
of transmitting ideas, distant members of the same family 
were enabled to know that they belonged to the same stock, 
were people of the same extraction ; family recollections, 
prejudices, and affections expanded into the common feelings 
of the tribe. Language became a new and potent agent, both 
in the development of man's character and the progress of 
civilization, however slow this must have been in the begin- 
ning, especially before the art of writing was invented; in 
uniting generations with generations, and in awakening in 
man the consciousness that he is essentially a member of a 



* See Herder's Treatise upon the Origin of Language (a *' crowned" prize 
Essay), translated from the German, London, 1837. I wish, however, not to be 
understood as agreeing with those scholars who ascribe the origin of language to 
this superiority of the organs alone. The noblest organ would not have pro 
duced language, had man not felt urged to express thoughts and feelings. See 
likewise the various works on the human voice, for instance that of Dr. Rush. 
\_I.e., language could not exist without high degrees of memory, forecast, imagi- 
nation, abstraction, generalization, etc. Language is the voice of a highly 
endowed soul. A brute soul does not need it.] 



DIVISION OF LABOR. 



107 



society, not only as to its present existence, but likewise as to 
its connection with previous and future generations, that he is 
indebted to the former, and that the latter will depend upon 
him. Man began to perceive that he is closely united with a 
permanent society, that his weal and woe are interwoven with 
it. As he has affection for the members of the same family, 
so he found them enlarged into affections for a wider society, 
he felt himself mingled with it, with its recollections, its his- 
tory, and its future destiny ; he loves his tribe, his nation, his 
country, until at last this feeling becomes a distinct and ardent 
devotedness to his country, becomes patriotism, and the phi- 
losopher pronounces, non nobis sed rei-publicae nati sumus. 

VI. The various members of a family could not live to- 
gether for any length of time without a certain degree of 
division of labor. No number of individuals can associate 
with one another, for whatever purpose this may be, not even 
children for the sake of playing, without dividing, in a degree, 
labor among them.^ Indeed, the first division of labor must 
needs have begun between man and wife, brought and kept 
together originally by physical difference and social desires. 
Division of labor, and what is indispensably connected with 
it, union of labor or association of energy, leads naturally to, 
and, in fact, is of itself, exchange, bartering, so peculiar and 
characteristic of the human species, as we have seen in the 
first book. This forms another bond of society. The division 
of labor and consequent exchange lead, moreover, soon to 
the idea of property, the desire of retaining free mastership 
over that which we have acquired by our own industry, per- 
severance, courage, sagacity, or any other exertion of our 
mind or body, or by good fortune. 



^ Men, ever so strange to one another, if brought together, must divide labor. 
All cannot row and steer at the same time. When a caravan halts after a day's 
journey, one of ecch mess w^ill naturally attend to the camels, another v^^ill pre- 
pare the pillau, a third w^ill unroll the mats. The inmates of each room in a 
hospital always form soon a little community founded on the division of labor. 
Everything conspires naturally to unite men ; reflection, at a later period, finds 
out how salutary, what a blessing, sociality is. 



CHAPTER 11. 

Property. — Mine and Thine. — Origin of Property. — Various Titles. — Individual 
Property is necessary for Man. — Does not arise from Man's Iniquity. — Man 
never lives or can live without Property. — Slow Development of Property, — 
International Acknowledgment. — Copyright. — Property with Agriculturists. — 
Civilization and Population depend upon it. 

VII. The terms tnine and thine signify a comparatively 
close or exclusive relation between a person and some thing 
or another person. That thing to which we apply the term in 
its most intense meaning, that is, expressive of perfect master- 
ship over it, the right, the power of free disposal over it, is 
called the property of this person. Though there is an infi- 
nite gradation of all the various relations to which the words 
mi7ie and thine are applied, yet they all have this in common, 
that a peculiar relation between the two things or beings is 
meant. We say, my country, my king, my son, my horse, my 
beauty (if we wish to designate one we admire particularly), 
my sunset, etc. Man did not at once distinguish very ac- 
curately between all these relations ; peculiar closeness of 
relation, founded on whatever ground, was frequently con- 
sidered as establishing that which we now call exclusively 
property. The father felt that his child was in a peculiarly 
close relation to him, both on account of his physical relation 
to himself, and also because he protected the son ; the child, 
therefore, was long considered the property of the father. The 
close relation of the wife to the husband, her dependence 
upon him, made her to be considered the property of the 
husband. She was, and to this day with many tribes is, sold 
to him ; even with nations with whom she has acquired a 
more independent position, she continues, by way of ancient 
marriage ceremony, to be sold to the wooer. 

The ideas mine and thine must have originated with the 
io8 



MINE AND l^HINE. 



109 



first thousfhts of man. As soon as there existed more than 
one family, more than one couple of parents with their re- 
spective children, the idea of this close relation must neces- 
sarily have been clear in the mind of men. The child is much 
more emphatically the parent's, than the wife is her husband's. 
She may cease to be his, the child cannot change its relation 
to its parents. Besides, conjugal relations are but loosely 
defined and acknowledged with most tribes, I believe, perhaps 
with all, in the early stages of society; and, on the other 
hand, the human mind has not yet succeeeded, as already 
alluded to, in drawing a distinct line between that relation to 
which the word mine is applicable on account of affection, 
duty, etc., and that to which the same term may be applied 
on account of absolute disposition over it. Most nations have 
started from the idea that the child is bona fide property of 
the father, to be sold or exposed and killed according to his 
pleasure. Esquimaux children were offered to Captain Back 
by their parents for a needle or a saw. Again, affection itself 
must soon have given birth to the idea of mine and thine. 
There is no heart so cold, no intellect so dull, which is not 
struck at once by the force of the term, or the feeling ex- 
pressed by the words, " my child," " thy son." Animals have 
undoubtedly this feeling too, and, for a time, in a very strong 
degree. We see it by the readiness with which the parent 
sacrifices itself for its offspring ; but the feeling vanishes soon, 
and the brute intellect is too confined to develop it in any 
high degree. Applied to things, to objects of the inanimate 
world, the idea must present itself at an equally early period. 
The father has to provide for his children ; the absolute neces- 
sity establishes the absolute duty to do it. If he has broken off 
a branch of bananas for himself or his children, and some one 
else would take it from him, he would answer at once, in the 
most practical and most philosophical manner, "The bananas 
are mine, I plucked them." The title is proved in this case 
in the most forcible manner by that mode by which we prove, 
and conclusively, too, so many elementary positions — the 
exclusion of all the contraries, " To whom should this belong, 



no THE STATE. 

rf not to me ?" Has he not exerted himself to obtain them ? 
has he not, by his industry, established already a closer rela 
tion between them and himself, than any one else? The 
same is the case with his arrow, spear, the first animals he 
tamed, the first plants he saved, the first trap he made. They 
wear the imprint of his labor, they are identified with himself.* 
If the thing to be appropriated belonged to no one, to whom 
can it possibly belong, if not to him who took pains to obtain 
it ? Man continues to establish thus his title to property 
every day. All unappropriated things, for instance, the fish 
in the ocean, become appropriated as soon as caught, that is, 
as soon as placed in an exclusive relation to some one. The 
whale is the property of no one until the harpoon of the 
hardy whaler has wounded it. From that moment it is his. 
Even the mere chasing would establish, though no legal title, 
yet a socially acknowledged one, and it would be considered 
very unfair among whalers if others were to interfere in the 
pursuit of this, considered already an appropriated whale. 
This right of property by assimilation or imprint of labor or 
industry, if not appropriated before, confers certainly a strong 
title, and it might be said that as all capital is accumulated 
labor, labor saved, we likewise establish our title to property 
in civilized societies if we buy it lawfully, that is, if we give 
accumulated labor for it. So strong is the title conferred by 
labor that men are ever unwilling to dislodge, without any 
consideration, settlers who have improved the soil though it 
did not belong to them, and on w^hich they have, conse- 
quently, settled unlawfully. Many legislatures in the United 
States and other countries have afforded instances of this 
partial acknowledgment of a title under these circumstances. 

VIII. There remain, however, various important questions 
yet to be answered, and many other titles to property yet to 
be examined. 

Why, it ha'§ been asked, should man be allowed to appro- 



» See Locke on Civil Government, chap. v. 45, et seq. 



ORIGIN OF PR OPER TV. nj 

priate more than is necessary for his support ? We ask, what 
support is meant ? The momentary satisfying of his hunger, 
by shooting a deer, plucking a fruit ? Is he allowed to shoot 
several deer and dry the meat for the winter? Is he not 
allowed to cultivate a tree which shall give him fruit for cer- 
tainty, so that he may not be exposed again to hunger, the pain 
of which he knows already? May he not cultivate a patch of 
land to have corn for his children ? If he has slain a buck to 
satisfy his hunger, is he allowed to appropriate the skin to 
himself and call it his own ? If the industrious fisherman 
sails to the banks of Newfoundland to appropriate to himself 
the unappropriated codfish, has he no right to catch as many 
as he thinks he and his children shall want for the whole year? 
But they cannot live upon codfish alone ; may he not take so 
many codfish as to exchange part of them for other food, for 
clothing ? Does supporting his family not include the send- 
ing of his children to school ? May he not catch some more 
to save the money he may obtain for it, that, should he perish 
at sea, his wife and children may not suffer from want or be- 
come a burden to others? Where does the meaning of 
support stop ? Why should it apply to the satisfying of 
physical wants only ? There are wants far higher than these 
— the wants of civilization. We want accumulated property; 
without it, no ease; without ease, no leisure; without leisure, 
no earnest and persevering pursuit of knowledge, no high 
degree of national civilization.^ Aristotle already lays it down 
as the basis of high civilization, to be free and have leisure. 
Still the question would remain, why have private property ? 
It is the very same ease which is promised to us by those who 
recommend to us a system of common property. 

IX. Each man is a being of himself, an individual; his 
individuality is all-important. He has a natural aversion to 
being absorbed in an undefined generality. From early child- 



» That by leisure I do not mean idleness, is clear. No harder working men 
than those who pursue sciences; but knowledge must sink, where every one has 
to work for his momentary and daily support. 



112 THE STATE. 

hood man feels an anxiety to be a distinct individual, to ex- 
press it, and consequently to individualize everything around 
him. Man must ever represent in the outward world that 
which moves his inmost soul, the inmost agents of his mind. 
Property is nothing else than the application of man's indi- 
viduality to external things, or the realization and manifesta- 
tion of man's individuality in the material world. Man cannot 
be, never was, without property, without mine and thine. If 
he could, he would not be man. In all stages of civilization, 
at all ages of his life, we find him anxious to individualize 
things, to rescue them as it were from undefined generality — 
to appropriate. It is a desire most deeply implanted in man. 
Children will call a certain peach on the tree mine, another 
thine, without the least reference to its final consumption. 
The child is anxious to have a bed in the garden of his parent, 
merely to call it his own. When children look at flying birds, 
at passing clouds, they are apt to single out one or the other 
and call it mine, yours, etc. No complaint of the poet is more 
melancholy than that no heavy blade falls under his own 
sickle. Children in houses of refuge are most anxious to 
have a little box of their own, to have something in the wide 
world which they may call their own. The most abject galley- 
slave and the most powerful king strive equally to acquire 
some property, to have something they can call specifically 
their own. The former contrives to obtain a box or chest 
which may belong to him exclusively; the latter saves and 
buys property. And why should this anxiety have been so 
deeply implanted in the human breast ? Because, as will be 
shown, private property is the most powerful agent in the 
promotion of civilization — an agent which has this striking 
peculiarity, that while it originates with man's individuality, it 
is at the same time the surest and firmest bond of society. 

Whatever is absolutely necessary for man's physical or intel- 
lectual existence. Providence has accompanied with pleasure. 
It is a pleasure to eat when hungry, to drink when thirsty, to 
sleep when tired, to awake after a long sleep, to love and care 
for one's children, to speak and commune with others after 



INDIVIDUAL PROPERTY. 



113 



long solitude ; the mere utterance delights the child. It is a 
pleasure to meditate, to analyze and combine ; a pleasure of 
itself to produce, to work with effect; it is a pleasure to assist 
others, a pleasure to accumulate property — to individualize 
things and to place them in a closer relation to yourself The 
first field you buy makes you feel happy, not because it will 
give you more or better fruit than you have enjoyed before, 
but because it is yours, just as the child is delighted to call a 
dog or bird its own. The human heart is delighted at finding 
its individuality reflected in the external world. The deep- 
rooted and noble love of independence is founded upon nothing 
else but the original anxiety of constituting a distinctly sepa- 
rate individual and being acknowledged as such. And as 
unrestrained pleasure in eating or drinking degenerates into 
gluttony or intemperance, so does the immoderate desire of 
appropriation degenerate into avarice. There was good reason 
for placing avarice as the second of the cardinal vices, because 
man has so strong a temptation to fall into it. All vices that 
beset us most are those which consist in a degenerate excess 
of the most natural and, therefore, most deeply implanted 
principles of our soul. 

X. The process of the individualization of things, or effect- 
ing a relation between man and things, is various. It may 
be effected — 

by production — if I make a boat, a book ; 

by appropriation — if I gather fruits, or take fish ; 

by occupancy — if I declare things mine and am able to 
maintain my declaration, 

a, by force (conquest, see further below) ; 

b. by law; and here, again, 

by pre-emption, 

by positive declaration of law, etc. ; 
by mixed production — if I tame animals, cultivate the 
ground ; 

by conveyance of the right of others — by grant, by sale ; 
etc., etc. 

8 



114 THE STATE. 

It is by no means said that these titles are absolute, or that 
they may not be regulated or interfered with by law. Many 
civilized societies prohibit too large an accumulation of prop- 
erty and too multiplied a division of real estate. Nor is it 
said that there is not somewhere a power which can change 
it. I do not mean to convey the idea that all sorts of titles 
are unimpeachable. If a country is really over-peopled, and 
if they cannot in any other way obtain additional land, al 
though it may be unsettled, they are perfectly right in con- 
quering it. Who would deny it? All I maintain is the prin- 
ciple that man must live with individual property. It is for 
natural and positive law .to inquire fully into the nature of the 
various titles, and all their bearings upon society. 

XI. The idea of property, that is, of a peculiar relation 
of man to things without him — a relation distinguished by a 
degree of exclusiveness and by peculiar reference to him, 
which involves the powder over it, of disposing of it — grows 
out of the very nature of man, and, consequently, we find 
him at no stage without property. We do not, indeed, meet 
with landed property in all tribes ; but the rudest islander of 
the Indian Archipelago, the lowest inhabitant of the Aleutian 
group, will call the fish-hook he made, the canoe he bartered 
for, the dress which he prepared of skins obtained by himself, 
his own, and consider every attempt to dispossess him of these 
articles as a gross outrage. Nor has there ever existed a 
society without property. We have seen trials made of estab- 
lishing societies within which no individual property on a 
large scale was to be acknowledged, e.g. that of Mr. Owen in 
New Harmony, or that of the St.-Simonists in France. Some 
have succeeded in a degree, as Mr. Rapp at Harmony; so 
does the sect commonly called Shakers allow of no individual 
landed property, as many Catholic monastic communities do. 
But, first, their resignation of private property never extended 
much beyond what is generally called real estate; and, sec- 
ondly, what more did the individual, in resigning, do than 
give up his property to the community he joins ? They did 



INDIVIDUAL PROPERTY. 



IIS 



by no means abandon all idea of property, nor could they. 
If St. Francis prohibits his order from holding property, he 
wishes them nevertheless to hold churches, convents, etc. ; 
and if he enjoins them to beg for the daily support, he thereby 
acknowledges the right of property in the donors of the alms. 
Suppose even that a whole nation could be induced to 
adopt the plan of Mr. Owen — and a most lamentable event it 
would be, because it would be reducing society to a chaos, out 
of which it needs must struggle to elevate itself, the very next 
moment after its reduction to it — would not that nation insist 
upon its joint property against the claims which another 
nation might set up ? In a word, can we for a moment pos- 
sibly imagine mankind without property? All that fanciful 
minds have dreamed of a supposed golden age extends no 
farther than to very confined limits. Bring yourself for a 
moment to imagine the idea of property erased from the 
human mind ; what a state ! Nothing but brute force to 
support each single individual — a pack of hungry wolves. 

XII. It would not be much better were we to acknowledge 
the right of property in general, while we annihilated indi- 
vidual property within the limits of a state, nation, or what- 
ever other society. The personality of man, the fact that 
every human being is, and of right ought to be, a moral being 
of himself, requires, generally speaking, private property. Men 
are not destined to become, after being united into a society, 
like a mass of liquid, every drop of which loses all character of 
individuality. Man is, and forever shall be, an individual. His 
goodness, his greatness, his activity, his energy and industry— 
everything good and characteristic of him as man is connected 
with the idea of individual property, if we include in this term, 
as we ought to do, the certainty of securing individually the 
benefit of individual exertion, of labor. Depriving man of indi- 
vidual property would amount to depriving him of half his 
humanity. Man strives, and laudably so, to see his individual 
industry, skill, and perseverance palpably, visibly, bodily repre- 
sented in gathered property, this " nourisher of mankind, m- 



Il6 THE STATE. 

centive of industry, and cement of human society." (Sir James 
Mackintosh's speech in the Commons on the Reform bill.) 
Property is intimately connected with the idea of the family 
as a separate body, and on this account, as well as on many 
others, with the whole province of civilization. Without a 
progressive advance of industry there is no civilization, though 
industry alone does not constitute civilization ; and man's 
great destiny is civilization. 

XIII. That primary agent within man which we may call 
the desire of action, of which I shall speak more fully by- 
and-by, when treating of power, impels him likewise to obtain 
property, as on the other hand, as we have seen already^ 
property gives impulse to this activity. Whatever point of 
view we may take, we find that individual property is natural 
to man, connected with the inmost principles of his soul, and 
necessary for him as a social being. It is not to be ascribed, 
therefore, solely and originally to covetousness. Covetous- 
ness is a vitiated excess of an agent or principle originally 
good or innocent. The desire of property springs so directly 
from the nature of the human soul that it is universal, and, it 
being universal, its vitiated state is also of frequent occur- 
rence. We see the same with respect to incontinency. The 
fact that covetousness is a widely-diffused vice, has induced 
many people, however, to consider property altogether as 
having its origin in a vicious disposition of man. This view, 
together with the erroneous conception of a state of nature, in 
which man has been supposed to have lived before a division 
of property had been made (instead of considering property 
as having grown inseparably with man), of the principle of 
mutual love, taught by Christianity, and the community of 
property, which in a considerable degree may have existed 
among the first Christians as long as they remained a small 
sect and an oppressed church, induced the early doctors of 
the church to consider the division of property, though not 
any longer iniquitous, yet as having arisen from the sin of 
man, and as being now necessary only in consequence of sm's 



PROPERTY WAS NEVER GENERAL. ny 

continuance. St. Ambrose, in chap. xii. Luc, St. Chrysostom, 
Horn. I in Cor., St. Basil, Serm., all declare that no one should 
say, this is mine, this is thine, because everything is common 
(meaning of course among Christians). St. Thomas Aquinas 
says, Divisio bonorum non est iniqua, sed iniquitatis occasione 
et ad iniquitatem avertendam sit facta." The assumption of a 
division of property, as having taken place at some definite 
time, does not belong to the early Christians alone. The an- 
cient Greek and Roman philosophers speak of it ; nor can we 
be surprised at this view. It is a common error to ascribe 
general phenomena, presenting themselves to the eye of the 
observer as a definite thing, to an origin as definite, to specific 
general actions and agreements of society, instead of search- 
ing for their origin in the gradual but steady and natural 
operation of principles founded within us, or conditions which 
are the necessary effects of the relation of our nature to ex- 
ternal and given circumstances. The origin of languages, 
of governments, of religions, has likewise been ascribed to 
arbitrary, sometimes fraudulent, agreements or inventions of 
individuals. 

The fallacy in the case before us is great. It was first 
assumed that property was at some period or other divided. 
If so, it is clear that those who had the right to divide must 
collectively have had possession of the whole — a state of 
things which was considered to be much purer. An errone- 
ous interpretation of a passage in the Bible (Gen. i. 28), by 
which man is declared to be ruler over all the earth, contrib- 
uted to confirm this mistaken view. Things which are not 
owned by any individual do not on that account belong to 
all.* What meaning would the word property have, if ap- 



* * Why did men never declare the stars common property ? They are things, 
too, not owned by any one. Because all know that we cannot exercise con- 
trol over them. The same with the birds on the islets of the Pacific. They 
were born and died unseen, unknown, uncontrolled, and were as little common 
property as the stars But does a thing become common property only the mo- 
ment that an individual seizes upon it, that is, at the moment when it ceases 10 be 
common property ? This is absurd. 



Il8 THE STATE. 

plied to things which are out of the reach of man and have for- 
ever remained so? Have the millions of birds on the islands 
in the Pacific, which have lived and died unseen by human 
eye, been the property of any one individual or society ? The 
passage in the Bible means that man shall be the ruler, shall, 
wherever he goes, subject the creature beneath him and make 
it his own ; it means his inherent right to obtain, acquire, 
produce, individual property, and the superiority of his mind 
which will aid him in doing so. The uncaught fish in the 
ocean does not belong to all ; it belongs to no one. Else it 
could not possibly become the property of him who catches 
it, at the moment he does so. Besides, the argument would 
apply to existing things only ; how is it with those which 
man produces? We have a poem entitled the Division of the 
Earth, but I have seen nowhere such an event recorded in 
history. " To suppose a state of man prior to the existence 
of any notions of separate property, when all things were 
common, and when men, throughout the world, lived without 
law or government, in innocence and simplicity, is a mere 
dream of the imagination." (Kent's Comment., part v. lect. 
xxxiv.) Modern writers have generally followed this idea of 
original common property, confounding non-appropriation 
with common property, with more or less acuteness, from 
Hugo Grotius and Puffendorf down to Blackstone, who but 
follows the two first-named writers. Chancellor Kent, in the 
lecture just quoted, elevates himself to a far higher view; I 
therefore recommend in particular its perusal.' 

XIV. If I say that individual property is natural to man, I 
do not wish to express the idea that I am opposed to all com- 
binations of property. On the contrary, I do believe that 
institutions in which persons of very limited property, de- 



' Justin., lib. xliii. ; Hugo Grotius, De Jure Belli ac Pacis, lib. ii. cap. iii. ; Puf- 
fendorf, Droit de la Nature, ed. Barbeyrac, liv. iv., c. iii. iv., v., et seq.; Blackstone^ 
ii., p. I, etseq. — Hugo Grotius, always to be read with advantage, is no less so in 
the above book, and I advise the student to reflect well on it, though I differ from 
tlial great writer on the original principle. 



PIRACY CONSIDERED HONORABLE. 119 

prived of family connections and advanced in life, should join 
their scanty means, in order to secure greater comfort, and 
perhaps even a more proper sphere of activity might prove 
highly advantageous. 

On the other hand, it might be urged that, if property is 
natural to man, that is, consentaneous to the principles of his 
soul, how is it that robbery and piracy are considered an 
honorable trade with nearly all, perhaps with all, early nations, 
and if not absolutely honorable, still an occupation at which 
the general feeling of society does not seem to revolt ? When 
Telemachus visited Nestor, to obtain some information re- 
specting his father, his aged host, after having refreshed his 
guest and prayed with him, says, ''And now it may be meet 
to inquire and ask who the strangers are, after they have 
refreshed themselves. Strangers, who are you ? From whence 
do you navigate the watery way ? Is it for settled purpose, 
or do you roam at hazard, like robbers over the sea, who 
wander wagering their own lives, bearing evil to others ?" 
(Odyssey, iii. 70, et seq.) Homer does not represent those 
who were asked as spurning this question ; those who asked 
did not mean to offend.^ So we have only to look at the mid- 



' The following passage from Thucydides, at the beginning of his first book, 
is interesting respecting the above subject : 

" The Hellenes formerly, as well as those barbarians who lived upon the coast 
of the continent or occupied the islands, when they had better learned how to 
pass to and fro in their vessels, took up the business of piracy under the command 
of persons of the greatest ability among them, for the sake of enriching such 
adventurers and supporting their poor. They landed and plundered by surprise 
unfortified places and scattered villages, and from hence they principally gained 
a subsistence. This was by no means at that time an employment of reproach, 
but rather brought them somewhat of reputation. Some people of the continent 
are even to this day a proof of this, who still attribute honor to such exploits if 
handsomely performed ; so also are the ancient poets, in v/hom those that sail 
along the coasts are everywhere equally accosted with this question, whether 
they are pirates ; as if neither they to whom the question was put would disown 
their employment, nor they who are desirous to be informed would reproach them 
with it. The people of the continent also used to exercise robberies upon one 
another, and to this very day many people of Hellas are supported by the same 
practices: for instance, the Ozolian Locrians, and ^tolians, and Acarnanians, 
and their neighbors on the continent; and the custom of wearing their weapons. 



120 THE STATE. 

die ages, to find the trade of piracy and land-robbery held 
in honor for centuries. But I have not said that, because the 
idea of property is natural to man, it represents itself at once 
perfect to his mind in all its bearing ; on the contrary, we shall 
see farther below that man, a rational being and destined for 
progressive civilization, has to develop every institution which 
is natural to him. Was not the holding of robbery in honor 
a distorted view which people took of the means of acquiring 
property, as if boldness, danger, adventure, were fit employ- 
ment for freemen, but toiling for it fit for bondmen only, rather 
than a denial of property? They differed from us respecting 
the means, not the matter itself; for had they not had the idea 
of property, or felt the impetus of acquiring it, why should 
they have incurred dangers to do so ? They believed power 
or courage sufficient to establish a title, not that everything 
belonged promiscuously to every one. 

XV. The subject which occupies our present attention re- 
quires that I should anticipate a few remarks on a point 
which will presently engage us more fully, and to which I 
have had occasion to allude several times. The right of prop- 
erty has been but gradually recognized ; each step in the 
way of civilization has obliged men to acknowledge it in one 
more of its many ramifications and peculiar forms. Still, I 
do not say, ''yet property is natural," but ''therefore property is 
natural to man." Everything that characterizes man as man 
appears clearer and more distinct with each advancing stage 
of civilization, the true aim, not the artificial end, of human 
society. We must lay it down as a rule, that whatever is 
truly natural to man, that is, essential to and characteristic of 
him, unfolds itself more perspicuously with the progress of 
civilization, and whatever shows itself in a steady gradation 
more perspicuously with the progress of civilization, is truly 



introduced by this old life of rapine, is still retained among them." So far Thu- 
cydides. Piracy was considered peculiarly honorable by many tribes around the 
Baltic or on the Northern Ocean in the middle ages, for instance, by the North- 
men 



COPYRIGHT, 121 

natural to man. The leaf is not less natural to the tree than 
the root, though it only shows itself under the influence of 
vernal sunshine. Much confusion has arisen from mistaking 
man's savage or rude state for his natural state, in consequence 
of which man's civilized state necessarily appeared as an arti- 
ficial one, owing to the looseness with which the word nature 
has been used, applying it in different meanings to plants, 
animals, etc., or to the character essential to them, or, again, 
to man differing by his reason from them. The next erroneous 
step was that, since the civilized state of man was considered 
an artificial one, all rights which were gradually unfolded as 
it were by civilization appeared to be made and not acknowl- 
edged by society. We have a striking instance in the right 
of property. In some limited form it was acknowledged at 
an early period. Gradually it became more clearly defined, 
more distinctly recognized in the various spheres of human 
activity and enterprise, spheres to which man could elevate 
himself only by civilization. The law of individual inherit- 
ance has developed itself but very slowly with all nations, as 
the legal history of every civilized nation shows — for instance, 
that of the Romans or Teutonic tribes. Yet we find it with 
every civilized nation ; and are we not bound on this account 
alone, even if there were not other powerful reasons, to ac- 
knowledge it as natural to man ? If it is artificial, invented, 
then who invented it ? Who had or has the gigantic power 
to force all mankind into a course contrary to nature ? What 
is there in existence that can long and continually remain in 
a state against its nature ? 

We are surprised at the undefined state of property in those 
early stages of society, when piracy is considered a noble 
employment, fit to be extolled by bards, but we must not 
forget that there are rights of property to this day unacknowl- 
edged, which future generations will consider as sacred as we 
do those acknowledged centuries ago. Because there was no 
copyright in early times — because there were no books, or 
books did not yield any profit to make copyright worth any- 
thing — it is believed by many to this day that copy-right is 



122 THE STATE, 

an invented thing, and held as a grant bestowed by the mere 
grace and pleasure of society ; while, on the contrary, the 
right of property in a book seems to be clearer and more 
easily to be deduced from absolute principle than any other. 
It is the title of actual production and of preoccupancy. If a 
canoe is mine because I made it, shall not that be mine 
which I actually created — a composition ? It has been as- 
serted that the author owes his ideas to society, therefore he 
has no particular right in them. Does the agriculturist not 
owe his ideas to society, present and past ? Could he get 
a price for his produce except by society ? But a work of 
compilation, it is objected, is not creation or invention. In the 
form in which it is presented, it is invention. The ideas thus 
connected, though they are, separately, common stock, like 
the wild pigeons flying over my farm, are the compiler's, are 
preoccupied by him, and belong to him in their present order 
and arrangement. The chief difficulty has arisen from the 
fact that ideas thus treated, thrown into a book, had for a long 
time no moneyed value to be expressed numerically, and that 
copyright has therefore not the strength of antiquity on its 
side. Yet observe how matters still stand with regard to this 
right. Prussia has passed, only last year (1837), an extensive 
and well-grounded copyright law.^ In most countries, thea- 
tres may make whatever money they can by the performance 
of a play, without permission of the inventor ; that is, they 
may use my boat to earn as much ferry-toll as they can. In 
the United States and in England, any man may make an 
abridgment of the work of another; that is, any man has a 
right to cut the ears of my corn, provided he leaves the stalks 
untouched — to drink my wine, provided he leaves me the 



* By this law of June ii, 1837, authors of works of literature, the sciences and 
arts, are secured an exclusive privilege of publishing, multiplying, and copying 
them during the term of their lives, and the same privilege is extended to their 
representatives for a period of thirty years from the day of their deaths. The 
whole law, altogether well digested, is applicable to works published in a foreign 
state — in whatever language — in so far as the rights established in that state are 
conferred equally by the'laws of the said state to works published in Prussia. 



COPYRIGHT. 123 

casks/ Those nations who speak the same language, as the 
English and Americans, French and Belgians, and several of 
the German States (with the exception of Prussia and proba- 
bly some others), have not yet international copyright, 
though they acknowledge other property of each other's 
citizens. It strikes every one, nowadays, as very barbarous, 
that in former times commodities belonging to any foreign 
nation were considered as good prize, yet we allow robbing 
in the shape of reprint, to the manifest injury of the author. 
The flour raised in Pennsylvania has full value in Europe, and 
is acknowledged as private property, but the composition of a 
book, the production of which has cost far more pains, is not 
considered as private property. A regular piratical trade is 
carried on in Austria, and by Austria with other countries, in 
books published in other parts of Germany. It was an ill- 
chosen expression in the British acts relating to copyright, that 
they were passed for "the further encouragement of learning." 
The legislature had, in this case, nothing to do with that sub- 
ject, and Sergeant Talfourd, in bringing his new bill into the 
house, justly said that it was for " the further justice to learning." 
I do not mean to say that perpetual copyright is absolutely 
necessary according to natural justice. The sovereign action 
of society can regulate the tenure of this species of property 
as well as any other; though the same learned gentleman 
states that " perpetual copyright was never disputed until 
literature had received a fatal present in the first act of parlia- 
ment on the subject, passed in 1709."^ It seems very clear 
to me that the shortest term for which copyright ought to 
be secured by law is the life of the author and his next heirs, 
if both are not less than sixty years, the average time of two 
generations ; but I strongly incline to believe that a century 



» Soon after Mr. Washington Irving had issued his Life of Columbus, his pub- 
lisher was obliged to give notice that the author, being informed that some un- 
authorized person intended to publish an abridgment, had himself engaged in 
making one. 

2 Speech of Sergeant Talfourd in the Commons, May i8, 1837 — able as every- 
rhing that comes from that distinguished poet and lawyer. 



124 ^^^ STATE. 

would be a proper term, and for the benefit both of the com- 
munity and the author, if perpetual copyright be not adopted, 
which may offer objections, not to be discussed here.' 

XVI. Though men, when as yet but hunters, fishermen, or 
nomads, cannot live without some property, the first great 
step takes place when man passes from the hunting or roam- 
ing life to that of agriculture. So long as there is no indi- 
vidual property among the agriculturists, so long is the ground 
but poorly tilled. Witness some Indian tribes. And so soon 
as there is a real desire to till the ground, so soon does man 
revolt at the idea of laboring for the indolent. If he were 
forced to do it, degradation would be the necessary conse- 
quence. Who would be on a par with the inert and inefficient? 
Idleness, with its concomitants, vice and crime, must follow. 
Mr. O'Connell, in his speech already referred to, singles out 
the legal incapacity of holding property as one of the two 
main causes of crime in Ireland.^ Let us not be told that 



* The right of international copyright is considered by some with a view to 
profit only, that is, as it strikes me, in a piratical point of view. As it is well to 
see the arguments on both sides, I would refer the student to a publication of Mr. 
Nicklin, of Philadelphia, against the proposed international copyright between 
the United States and England. [Since the author wrote, international copy- 
right has been greatly extended in Europe.] 

* On April 28, 1837, in the British Commons, on the Irish Poor-Law Bill. He 
said, " I need not go far back. It is unnecessary for me to go farther back than 
the last century and a half; and, looking at that, no one can be surprised to find 
Ireland in the state that she is in, I allude merely to two heads of those which are 
called the penal laws. By two distinct branches of those laws, ignorance was 
enforced by act of Parliament and poverty was enacted. Such were the effects of 
the penal laws. It was enacted that no Roman Catholic should teach or have a 
school in Ireland. Such instruction of youth was prohibited. No Roman Catholic 
could be an usher in a Protestant school ; it was an offence punishable by confine- 
ment until banishment. To teach a Catholic child was a felony punishable by 
death. The Catholics were prohibited from being educated. For any child re- 
ceiving instruction, there was a penalty of ^10 a day, and when the penalty was 
two or three times incuiTed, then the parties were subjected to z. prcemunire — the 
forfeiture of goods and chattels. To send a child out of Ireland to be educated was 
a similar offence ; to send it subsistence from Ireland was subjected to the same 
forfeiture; and, wh-^t w?", still more violent and unjust, even the child incurred 



AGRICULTURE. 



125 



we see the contrary in those societies already mentioned, the 
Shakers and that founded by Mr. Rapp. They live as a com- 
munity contradistinguished from all who surround them, and 
enjoy the benefit of the general civilization brought about by 
the division of property in their whole nation. So may a 
family live very peaceably without ever calling in the protec- 
tion of the law, or ever hearing of it, but that they can live so 
quietly, and do live so amicably, is nevertheless the effect of 
law and justice. Without property, society would never have 
risen so high that those communities now may live so peace- 
ably and have so civilized intercourse with one another. 

Property now assumes a more striking and a more elevated 
character. The progress of civilization is intimately connected 
with the division of the soil and hereditary property, as with 
agricultural pursuits altogether. For the other branches of 
industry cannot be cultivated if men have not previously 
become tillers of the soil. Civilization, moreover, requires 
increased population, and the former likewise promotes the 
latter ; but the human species cannot multiply to any great 
extent unless supported by agriculture.^ Property, again, 



a forfeiture. By these laws there was encouragement given to ignorance, and a 
prohibition imposed upon knowledge. I am not now to be told that these laws 
were part of ancient history : they were in full force when I was born. Another 
part of this code of laws prohibited the acquisition of property. No Roman 
Catholic could acquire property. He might, indeed, acquire it; but if he did so, 
any Protestant had a right to come into a court of equity and say, ' Such a man 
has, I know, purchased an estate — such a man is a Roman Catholic ; give me his 
estate ;' and it would be given to him. To take a lease beyond thirty-one years 
was prohibited ; and even if within thirty-one years, and the tenant by his in- 
dustry made the land one-third in value above the rent he paid for it, it could 
be transferred to a Protestant. These were laws that were in force for a full 
century. For a full century we had laws requiring the people to be ignorant and 
punishing them for being industrious — laws that declared the acquisition of 
property criminal, and subjected it to forfeiture. For one century ignorance and 
poverty were enacted by law as only fit for the Irish people. The consequences 
of a system of that kind are still felt." — The speech contains some veiy interest- 
ing agricultural statistics comparing Ireland and England. 

» Cuvier, Regne Animal, vol. i. p. 78, Paris edit., 1827. The ancients were 
well acquainted with the fact that the human species does but slowly increase 
while in a state of barbarism. " As it seems to me," says Herodotus, i. 58, " the 



126 THE STATE. 

must be protected against intruders as well as invaders ; this, 
too, leads men to resort to mutual support, to live socially 
united. I speak now of a state of mankind when they have 
so far increased in number that the mere family tie is not any 
longer sufficiently powerful to make the individuals consider 
themselves as members of one family, when the various fami- 
lies have become estranged from each other, owing to the 
extensive number as well as the distance at which they must 
necessarily live from one another. Security of property, which 
includes individual property, is the mainspring of cultivation, 
as, among others, Mr. Henry Carey has abundantly proved in 
his Political Economy. The Hon. Mountstuart Elphinstone 
gives, on the other hand, on page 334 of his Account of the 
Kingdom of Caubul, London, 181 5, the description of a pecu- 
liar tenure of land, by which it is distributed among various 
tribes every ten years by lot — an insecurity leading of course 
to neglect of culture.' 



Pelasgic tribe has never become numerous, because it was in a state of barbarism." 
The history of all bai'barous nations proves the same. 

* * For some remarks on the fact that vi^ith property in soil the idea of private 
property, and, consequently, of the necessity of protecting it, first presents itself 
distinctly, and that states can become then only stable and the true foundations 
of progressive civilization, see section Ixxxix. of this book. All uncivilized tribes 
furnish us with examples. They are not, indeed, without property, since man 
cannot be without it, but the idea is loosely defined ; property does not yet fur- 
nish a solid substratum for social development. The Rev, Mr. Yate, in his Ac 
count of New Zealand, 2d ed., London, 1835, speaking, on page 32, of the desire 
of the New Zealanders to obtain money, instead of blankets and other com- 
modities, says, " If they possessed any property (meaning personal), and it were 
known to any one else, they would be bound in honor to distribute it amongst 
their friends and adherents, or be liable, on the first cause of ofi'ence, to be dis- 
possessed of all." We may observe the same respecting many chiefs in the 
middle ages. 

Mr. Yate also says that the New Zealanders like money because they can hide 
it, carry it about their person —just like 'he Turks. 



CHAPTER III. 

Civilization. — What does it consist of? — Requires Society. — It develops Man, is 
his truly Natural State. — Futile dreams of Innocence and Virtue without Civil- 
ization.— Shepherds are savage. — Destiny of Woman. — High Importance and 
Sacred Character of the Family.— Virtues developed by it. — The true Nursery 
of Patriotism. 

XVII. Men thus led to keep together in families, and in- 
duced by every farther progress of their species to live in 
society, discover that its importance rises the more civilized 
they become, and, as has been stated, man's destiny is civil- 
ization. If we define the latter as the cultivation, develop 
ment, and expansion of all our powers and endowments, with 
reference, both as effect and as cause, to the social state of 
man, no one will deny, I suppose, the position.' Man was 
either made to be stationary or for civilization ; a medium is 
not imaginable. If he was made to remain stationary, we 
ought to know in what stage. That of the lowest barbarism? 



* Lieber's Remarks on the Relation between Education and Crime, printed by 
the Philadelphia Prison Society, Philadelphia, 1835, page 4 et seq. Whatever 
definition we may give of civilization, my remarks will apply. We may say, the 
civilization of a nation is its aggregate manifestation of mind as ruling over mat- 
ter. We call a nation more or less civilized according to the variety and the 
greater or less, deeper or more superficial extent of this manifestation : to be 
brief, that nation, I believe, will be called most civilized among which the 
greatest number of ideas are most widely diffused. A nation Avhich has very 
distinct and widely diffused ideas of a proper administration of justice or of tech- 
nical skill will be called more civilized than one which is wanting in these ideas, 
and less so than one which adds to this stock all the ideas of refined taste, in the 
fine arts, literature, social intercourse, etc. I recommend the perusal of the first 
lecture of Mr. Guizot's History of European Civilization, respecting the meaning 
of the word civilization. Deserving of attention are the remarks of William 
Humboldt on Civilization, Culture, and that which, higher than both, is desig- 
nated by the German word B'ldung, page 37 of Introduction to the Kawi Lan- 
guage, etc., already quoted. 

127 



128 THE STATE. 

If not, then he must be intended for movement ; and where 
is this movement to stop ? What direction is it to take ? 
Certainly that of mehoration. 

By civib'zation man develops his moral, intellectual, and 
physical powers, and by civilization man becomes more 
and more master over matter. But civilization cannot be 
conceived of without society, by which I do not mean large 
congregated masses only, but men closely united by a variety 
of important relations and strongly affecting each other's wel- 
fare. He was great "qui dissipatos homines congregavit et ad 
* societatem vitse convocavit." (Cic, Tusc, i, 25.) Without so- 
ciety, no fellow-feeling, no kindness ^ and sympathy ; without 
society, no public opinion, no shame, no virtue, no religion ; 
without society, no impulse for industry, no mental develop- 
ment, no intellectual progress from generation to generation, 
no common stock of science, no common stock of moral expe- 
rience, no literature, no taste, no music, no fine arts, no exalted 
love of the beautiful, no deep reflection, no refinement ; with- 
out society, no expanded idea of justice and mutual respect of 
rights, property, and independence, no public spirit and all that 
is connected with this elevating quality ; without society, no 
true family life, the source of so much that is pure, kindly, 
and great ; without society, no great degree of individual or 
territorial division of labor, no extensive exchange of produce, 



* Man may live in solitude, yet aid effectually in the progress of mankind and 
feel the liveliest sympathy for its welfare. Few more active citizens have ever 
lived than Fra Paolo Sarpi, already mentioned, in his solitary cell, but though in 
a cell he still lived in society, because closely connected with it by his books, 
the active interest he took in the mighty changes of his time, in science, religion, 
and politics, and by his intercourse with the first men of his state. So does soli- 
tude exercise a most powerful effect upon the reflecting mind, both morally and 
intellectually, an effect of its own, not to be supplanted by anything else ; nor 
can we prepare ourselves better for any great event, in which we know that we 
shall have to act an important part, than by retiring for a time into solitude. 
The ancient philosophers, the prophets, Christ himself, give the example; nor 
will any one who has ever tried absolute solitude deny its powerful, salutary, and 
lasting effect. This proves, however, nothing against my position. Man, in 
these cases, takes the amount of civilization gained by society with him, and 
remains united with it by all the ties of intellect. 



CIVILIZATION DEVELOPS MAN. 



129 



of customs and ideas, no calming and enlarging commerce;' 
without society, no polish of manners, no urbanity of inter- 
course, no saving of time, no increase of productiveness, no 
union of labor, of capital, of mind and various means, no 
works to benefit the many, no roads, no canals, no insurance 
against the elements, no schools, no protection, no cultivation 
to its greatest extent, no multiplied and animating enjoy- 
ments, no raising of the standard of comfort; without society, 
no great increase of numbers ; without society, no humanity 
in man. 

Civilization develops man, and if he is, according to his 
whole character and destiny, made for development, civiliza- 
tion is his truly natural state, because adapted to and effected 
by his nature. " Naturaliter ergo homo est animal sociabile." 
(^gidius de Regimine Principum, Venice, 1497, ii. I, c. I.) 

XVIII. Civilization develops man's physical powers in 
various ways. We find, indeed, that the senses of savages 
are peculiarly acute as to some objects, but infinitely more 
developed are the senses of civilized man by mechanical 
trades and other occupations, the fine arts, and in many 
other ways peculiar to civilization. A savage may excel him 
in one way; in how many, however, does he not excel 
the former ! Civilized man can undergo far greater fatigues, 
both purely physical and of a mixed character. The North 
American Indian can journey longer with his heavy burden 
across the portages than a white man ; but how would he 
stand the fatigues of a campaign in Egypt or Russia ? how 
would he endure a climate so unaccustomed to him as the 
parching rays of the tropic regions or the ice of the pole were 



» Free nations esteem commerce as a public benefit. The English, the Vene- 
tians, the Americans, the Greeks, are instances. The kfinopia or commerce on a 
large scale was highly valued by the Greek, though he undervalued the KairrjTyoc 
or shopkeeper. We have to imagine the Greek not only as the artist, poet, 
scholar, politician, enthusiastic lover of liberty, but also as the active, shrewd, 
and persevering merchant of antiquity. See Heeren's different works on the 
ancient nations. 

9 



I30 THE STATE. 

to the Humboldts, Parrys, Cailles, Rosses, Backs, Clapper- 
tons ? The muscular strength of civilized man has been as- 
certained to be greater than that of uncivilized man, as shown 
by the dynamometer, an instrument with a graduated scale for 
measuring muscular force. The sailors of a British ship were 
able to carry the index some degrees farther than any of the 
various tribes of the South Sea islands upon whom it was 
tried. Lastly, it is with advancing civilization that longevity 
invariably increases, as all bills of mortality abundantly prove. 

XIX. The toils and woes of the human species incident to 
the frailty of their bodies, ill-guided and jarring appetites, and 
misconceived interests, led men at a very early time to im- 
agine a period when plenty rendered labor unnecessary, and 
universal content prevented contest and clashing of private 
interests. Poets dwell with satisfaction upon this agreeable 
dream, which gave, at least to the fancy, that for which the 
heart yearned, and to which reality offered so decided a con- 
trast. The more degenerate the times, the more trouble and 
misery and vice there was in the world, the more vividly was 
this state of pristine happiness depicted ; and a Juvenal, before 
he lashes the depravity of the women at his time, first paints 
the golden age (Satire VI.). It was forgotten, or not distinctly 
seen, that man was destined to gain by exertion, to conquer 
all that is necessary for him, that there is no ready-made 
happiness, not even comfort for him. No fur protects his 
body, he has to clothe himself; no shelter is made for him, 
he must learn to build one ; his hand is no weapon like the 
corresponding limbs of many animals, he has to invent arms 
and instruments for it. Instead of the many specific physical 
instincts with which the brute creation has been endowed, he 
has received superior intellect, but this intellect itself has first 
to be developed gradually from generation to generation. 

The golden dream of original happiness was coupled with 
another equally erroneous view. Man saw the perfect laws 
of nature on the one hand, and the many real or supposed 
imperfections of human institutions on the other, degeneracy 



CIVILIZATION IS NATURAL. 



131 



and enervation, folly and discontent ; it was concluded there- 
fore that all was owing to his abandoning or counteracting 
nature, as if it had been the object of the maker of all to 
place man on a par with the brute or inanimate creation. The 
fact, which could not escape observation, that in many cases 
man had actually left his true nature, came in support of this 
view. Times like those in which Rousseau wrote, when the 
most burdensome and disfiguring dress corresponded to the 
shorn, crippled, and denaturalized parks and gardens, and 
when vice in the king's mistresses was elevated to political 
rank, established almost as a state institution, furnish us 
easily with a key by which we may explain the opening sen- 
tences of Emile, his work on education. " All is good," he 
says, ** as it comes out of the hands of the author of things : 
everything degenerates in the hands of man. He forces one 
land to nourish the productions of another, one tree to bear 
the fruits of another ; he mixes and confounds the climates, 
the elements, the seasons ; he mutilates his dog, his horse, 
his slave ; he overturns everything, disfigures all ; he loves 
deformity, monsters; he wishes nothing to be such as nature 
has made it, not even man; he must be drilled like a horse 
in the riding-school ; he must be tortured according to 
fashion, like the tree of his garden." ^ Rousseau forgot, how- 
ever, that it is man too who improves upon unaided nature 
everywhere ; he makes the soil bear hundred-fold, he en- 



« I am not desirous of mutilating in quoting, and shall add, therefore, the pas- 
sage which explains the view of the author, and modifies, in a degree, what the 
reader may have conceived to be the meaning of the above. " Sans cela," adds 
Rousseau, "tout iroit plus mal encore, et notre espece ne veut pas etre fa9onnee 
&, demi. Dans I'etat oti sont desormais les choses, un homme abandonne des sa 
naissance ^ lui-mSme parmi les autres, seroit le plus defigurd de tous. Les pr6- 
jug6s, I'autorite, la necessity, I'exemple, toutes les institutions sociales dans les- 
quelles nous nous trouvons submerges, etoufferoient en lui la nature et ne 
mettroient rien a, la place. Elle y seroit comme un arbrisseau que le hasard fail 
naitre au milieu d'un chemin, et que les passans font bientot perir en le heurtant 
de toute part et le pliant dans tous les sens." 

It will be seen, however, even from this passage, that Rousseau did share with 
so many other writers of his age the mistaken notion that man in a state of nature 
was as perfect as a tree. 



132 



THE STATE. 



larges the fruits^ ennobles the stock, saves from destruction, 
unites what was severed, carries the blessings and pleasures 
of one climate to another,^ and renders palatable what was 
repulsive, harmless what was poisonous ; his horse runs more 
swiftly than the wild horse, his mule endures greater fatigue. 
Where is the heavy wheat with bending ear, except on his 
cultivated ground ? where the grapes so delicious as those of 
his vineyard ? Where in nature, as it is styled, are all the 
cerealia ? The overcoming of the disadvantages and defects 
of climate is one of the boldest, noblest traits of man. 

XX. Trees, rocks, and rivers once being considered in a 
state of nature, and civilized man not, nothing was clearei 
than that the savage man was believed more natural, and 
consequently, by some, less depraved, than the civilized. 
Some of the acutest philosophers, as Hobbes, speak of the 
savage as man in a state of nature, from which it necessarily 
follows that they conceived civilized man as being in an arti- 
ficial — a made — state. In fact, he and so many others with 
him were partly induced to consider the savage in a state of 
nature because government, the state, appeared to him as 
something made, agreed upon. If so, it was clear that some 
state of things must have existed before the state was niade^ 
and this state of things might, if such had ever been the 
case, be called a state of nature. 

It would be difficult indeed to settle what, according to 
those philosophers, is the precise state of nature. Does man 
live in it only for one moment after his creation ? Or does 



» A simple list of the useful and ornamental plants brought to England from 
the various quarters of the globe, with the time when first introduced, such as I 
have seen in various works, for instance, I believe, in Loudon's Encyclopaedia 
of Gardening, and in one of the companions to the British Almanac, is well 
worth a moment's reflection. To how incalculable a degree have not comfort, 
health, enjoyment, delight, refinement, nay, life itself, been increased in England 
from the fiist rye and wheat which were carried across the Channel to the last tree 
imported from New Holland, by the " forcing of one land to bear the productions 
of another," as Rousseau calls it. Imagine Europe without this bouleversement, 
in ancient Celtic simplicity ! 



CIVILIZA TION IS NA TURAL. 



133 



the tattooed savage, who beautifies, as he supposes, the body 
of his child with a variety of artificial and tormenting means, 
live still in a state of nature ? Or is that a state of nature 
where men live without any sort of authority? If so, then he 
cannot be found anywhere in a state of nature. Or is that 
the state of nature where small hordes pursue each other, or 
where they live peaceably together ? We find these uncivil- 
ized tribes in all these conditions and relations to one another. 
Why is war a state of nature, and not peace ? Many of the 
rudest tribes disfigure their bodies far more extravagantly 
than any courtier of Louis XIV. or Charles II. did by his 
periwig and hair-powder ? Why is the savage more natural ? 
But we have to ask, what is, philosophically speaking, the 
true state of nature of any being or thing ? Doubtless that in 
which it fulfils most completely that end and object for which 
it is made according to its organization, and the principles of 
its vitality — ^the fundamental law* of its life and being. A 
dwarfish pine-tree on the high Alps, near the confines of per- 
petual snow, would, in its crippled state, certainly not be con- 
sidered in a natural state; nor would a plant be called of 
natural growth if a too luxuriant soil has given it precocious 
exuberance, of which a deranged organism and early decay 
must be the consequence. Neither the haggard look of hun- 
ger nor the flush of fever is natural. Man, with his expansive 
faculties, progressive capacities, and moral endowments, capa- 
ble of cultivation and requiring it ; man, who has received an 
unprotected body indeed, but one which adapts itself to all 
varieties of climes, which is able to carry him through various 
stages of social progress, and is by its fine organization adapted 
to his moral and intellectual destiny, is not in a state of nature 
when all that characterizes him as man, and distinguishes him 
from the brute, is stinted and stifled by a life of savageness. 
Man was essentially made for progressive civilization, and 
this, therefore, is his natural state. 

XXI. The reports of travellers on the moral state of man 
in the presumed state of nature corroborate what I maintain. 



134 THE STATE. 

The inhabitants of Lord North's island are probably as un- 
connected with any other portion of the human family as we 
can imagine any community to be. Contrast Holden's Narra- 
tive of a Shipwreck on the Pelew Islands^ with, the presumed 
primitive excellence of man in a state of nature, severed from 
civilization. Their mind so contracted that they would not 
use the fish-hooks offered by the wrecked sailors, though they 
acknowledged them to be much superior to their own, made 
of turtle-shell, because Yarris, their god, would be angry at 
their abandoning the old-fashioned hook (in which particular, 
however, it must be owned, they substantially resemble many 
white and refined people) ; their disposition cruel, their habits 
indolent; their sense of right and wrong, and of decency, 
hardly awakened ; improvident in the highest degree. Or 
ponder on such occurrences as Captain Back relates in his 
Narrative of the Arctic Land Expedition in 1833-1835, of the 
Cree Indian named Pepper (p. 175, in the American edition). 
They, at least, do not exhibit any inviting picture of the harm- 
less state among the uncivilized. Nothing can bridle man's 
passions, and the undue action of the necessary primary 
agents of the human soul, but civilization, society, and that 
which can be cultivated in it alone in any high degree, knowl- 
edge and religion. Religion belongs to civilization. It is 
true, indeed, that each farther-advanced stage of society offers 
new opportunities for crime. Each new branch of industry, 
new field of activity, increased intercourse between man and 
man, offers, of necessity, an additional opportunity for offences. 
Use carries with it the possibility of abuse, and it thus fre- 
quently happens that the number of indictable and punishable 
crimes increases with a progress in civilization, but not neces- 
sarily, on that account, criminality. The art of writing alone 
made all the crimes of forgery possible — one of the most nu- 
merous offences in highly civilized countries; an Indian in the 
West cannot commit it.^ The increase of the number of laws 



« Boston, 1836. 

* I have given my views on this subject in the Remarks on the Relation 
between Education and Crime, already quoted. 



LAIVS CANNOT BUT INCREASE. 135 

with the progress of civilization produced an early belief that 
increased immorality and criminality were the cause. But it 
is not so, notwithstanding the high authorities to the con- 
trary. " Many men marvel," says Lord Coke, '' the reason 
that so many acts and statutes are daily made ; this verse 
answereth : 

Quseritur ut crescunt tot magna volumina legis, 
In promptu causa est ; crescit in orbe dolus." 

(Twyne's case, Coke's Reports, iii. 80.) So says Tacitus: "Cor- 
ruptissima republica plurimse leges" (Ann., iii. 27). I do not 
say that laws are not multiplied by corruption, but civilization 
must increase their number though corruption may diminish. 
It necessarily multiplies men's relations, because it develops 
their activity, and each new relation draws after it new laws 
to protect or regulate it. Each year brings forth, at present, 
many new laws, while the middle ages had comparatively 
iQ\N\ and will it be maintained that immorality is now greater? 
Works like Wachsmuth's Moral History of Europe — a very 
extensive work — or Chateaubriand's Etudes Historiques will 
convince us at once of the contrary.^ The number of the 
boxes in the apothecary's shop has increased ; the variety of 
diseases is probably increasing with civilization, but not so 
mortality ; mortality decreases with civilization. The variety 
of offences increases, but not criminality. There are, besides, 
many other reasons why the number of laws should increase, 
fhey are not collected, classed, and condensed, that is, codi- 
fied at the proper time. Sir Francis Bacon and Chief-Justice 
Hale (see his preface to Rolle's Abridgment) already pro- 
posed and urged codification. Another reason is, that what- 
ever people have a right to do, they will do too much of, if it 
involves some sort of privilege. The legislator likes to legis- 
late; so those who have the right like to speak: lawyers, legis- 
lators, ministers, speak too much. Luther found it necessary 



» The many tables of moral statistics, drawn up from official documents, whicn 
have of late been published, are not discouraging. 



136 THE STATE. 

to enumerate among the nine " qualities and virtues of a 
good preacher," as the sixth, that he ought to know when 
to stop (vol. xxii. p. 991). It is vain, however, to hope that 
the laws of a civilized nation can possibly be reduced to a 
few principles. They would produce incalculable litigation. 
Stili, it is true, on the other hand, that civilization tends 
likewise to simplification, to a classification of what before 
was a mere mass without order — in common machinery as 
well as in scientific or political matters. 

XXII. My remarks do not only apply to the difference be- 
tween civilized and uncivilized tribes; they hold good in other 
respects. The innocence of shepherds has been a frequent 
theme of former poets, so much so that pastoral poetry forms 
an important class in the literature of many nations. Lambs 
are innocent; but shepherds are not lambs. The ideas of 
rural simplicity and happiness associated with Arcadia are of 
a purely poetic origin. Shepherds, where they form a class, 
unconnected with society, are generally ferocious men, given 
to violence and brutality, and very frequently either in con- 
nection with robbers, or robbers themselves. I found the 
Greek shepherds a rude and wild race, described to me as 
dangerous people ; the Italian shepherds or herdsmen form a 
part of the worst population ; the herdsmen of Hungary are a 
rude and little restrained race. What sort of men, in a moral 
point of view, the Spanish shepherds are, who traverse the 
country with their merino flocks, I do not know ; but we all 
know against how many revolting crimes Moses found him- 
self obliged to provide by his laws. The Jews were then a 
nomadic tribe. The Bashkeers, likewise a nomadic people, 
tributary to the crown of Russia, and who followed the army 
against the French in the year 181 3, were so rude that they 
could not be billeted in the houses of cities, but had to biv- 
ouac in the open squares. And yet does a man who spends 
his whole life on the back of his horse, and drives his camels 
from one steppe to another, not live " in a natural state" ? In 
countries in which there are many shepherds, yet not form- 



WOMAN. 137 

ing a separate class, as in Germany, they are frequently dis- 
tinguished by some peculiar knowledge, for instance, of 
medicinal herbs, but not, that I am aware of, for any higher 
or lower degree of morality. The early founders of cities 
have been justly renowned with all nations. Theseus was 
deified for having, among other deeds, united the inhabitants 
of Attica into a city ; and annual feasts showed how much 
importance the Athenians attached to this step in the civiliza- 
tion of their chosen peninsula. The German emperor Henry 
the City-Builder is ranked among the greatest benefactors of 
Germany.^ 

XXIII. The family, so important an agent in leading man 
to society, to civilization, obtains a higher importance with 
every progress which society makes in civilization ; for the 
family is natural to man, and all that is natural to him, that is 
essentially human, is more clearly developed with each ad- 
vancing movement in civilization. With the higher impor- 
tance of the family the woman likewise approaches that true 
position for which she is calculated. This higher importance 
of the family, and in it of the woman as wife and mother, is 



* Our languages, likewise, testify against the poets. Villain is from villanuSf 
which signified in Low- Latin a villager; and though it might be objected that 
the present meaning of villain is attached to the word owing to its having meani 
originally a bondsman, a vile fellow, there are other languages which involve the 
same idea. DoTperheid, from dorp, the Dutch and old English for village, so 
that the word literally translated would be dorpishness, signified in the seven- 
teenth century (the word is not any longer much in use), in Dutch, vileness, 
villany. I do not mean to intimate that the rural population in our times forms 
the focus of crime and worthlessness. Far be it. Criminal statistics show that 
in most civilized countries the agricultural districts are less productive of crime 
than others. The reason is because the latter are generally of a manufacturing 
character; and manufactures, together with other circumstances, existing in 
many countries, furnish an abundance of crimes. This last remark does not 
apply to the United States ; but the works of Guerry, Dupin, Julius, and other 
statistical writers on criminal matters show this relation to exist pretty generally 
in Europe. I merely intended to show that the languages indicate that civiliza- 
tion and morality do not necessarily go hand in hand with a separation from 
society, and that both are originally the fruits of a life taking the forms of larger 
communities. 



138 THE STATE. 

not only a general one by way of influence upon society, but 
it is more distinctly manifested and acknowledged by specific 
laws, which pronounce the sacredness of matrimony, secure 
the rights of the woman in her capacity as wife, mother, or in 
her single state, by the laws of inheritance, by securing the 
rights and protection of children in infancy, by providing that 
relations in an ascending or descending line are not bound to 
inform against one another,' that escapes favored by relations 
shall not be punished, etc.^ 

Woman has received, in the great order of things, a dif- 
ferent physiologic organization and mental bias from those of 
man. The Creator has directed her to receive her impres- 

' Kinsmen in the ascending or descending line, sisters and brothers, husband 
and wife, and those related by marriage in the first degree, are not bound to 
inform against one another, nor are they bound to such preventive actions as 
would necessarily lead to such information. (Bavarian Penal Code, article 79,) 
But ascending -kinsmen, husbands, are bound to endeavor to prevent the crime, 
or they are punishable. The explanation of this law, in the Notes to the Penal 
Code, vol. i. p. 212, speaks of the sacredness of the ties of blood, which the state 
shall not tear asunder. 

* The Proposition of a Penal Code for the kingdom of Wiirtemberg, Stuttgard, 
1835, declares relations in a still more remote degree free from penalty if they 
personally protect the criminal, without of course injuring others or interfering 
with public authority. See article 86. 

The Proposition of a Penal Code for the kingdom of Norway, Christiania, 
1835, declares the same free from penalty if they hide or assist a criminal 
kinsman to escape. See article 10. 

See the Motives published with both these Propositions, which by this time 
may have become the law of the land. 

It is curious that the Chinese penal code, throughout of a severe character, still 
holds relations who assist a criminal free from guilt. The great reverence incul- 
cated by the Chinese towards parents was undoubtedly one of the motives. The 
code decrees, " All relations connected in the first and second degree, and living 
under the same root, maternal grandparents and their grandchildren, fathers- 
and mothers-in-law, sons- and daughters-in-law, grandchildren's wives, husbands, 
brothers and brothers' wives, when mutually assisting each other and concealing 
the offences one of another, and, moreover, slaves and hired servants assisting 
their masters and concealing their offences, shall not in any such case be punish- 
able for so doing." More distant relations are punished more severely, accord- 
ing to the more remote degree of relationship. Ta Tsing Leu Lee, Penal Code 
of China, translated from the Chinese by Sir George T. Staunton, London, 1810, 
4to, p. 34 et seq. 



MONOGAMY, 



139 



sions more through the channel of feeHng; she has been en- 
dowed with a more tender sensibility ; man has to rely more 
upon reflection. Her consequent position in the state, and 
natural sphere of action, will be treated of in a subsequent 
part of the work. Suffice it here to say that she steps beyond 
her proper circle of activity, which is emphatically that of 
the family, through which nevertheless she becomes a most 
essential ingredient of the state, if she abandons the sphere 
of tender sentiment, of affection, peace, and love. And as 
nowhere the essential order of things can be violated without 
incurring great danger, so does the woman expose her 
morality and whole true character, and, therefore, society, to 
danger, the moment she interferes with politics. " When a 
woman gives her mind to politics, she becomes best ac- 
quainted with what is least respectable in them — their per- 
sonalities." ^ 

On the other hand, we find her in a deplorable condition 
before she has been raised by some degree of civilization. 
Ledyard and Mungo Park received kind attentions at their 
hands, while we find in Holden's Narrative, cited already 
twice, the following passage on page 93 : " And what may be 
regarded as remarkable, the female portion of the inhabitants 
(of Lord North's island) outstrip the men in cruelty and sav- 
age depravity, so much so that we were frequently indebted 
to the tender mercies of the men for escapes from death at 
the hands of the women." ^ 

XXIV. The family cannot exist without marriage, nor can 
it develop its highest importance, it would seem, without 
monogamy. Civilization, in its highest state, requires it, as 
well as the natural organization and wants of man. Cuvier, 



» Taylor's Statesman, London, 1836, page 72. 

* The great depth of immorality to which a woman is much more apt to sink 
a*, once by cxime, and how exceedingly difficult it becomes to reclaim female 
oil'enders, have been treated in the Introduction to Lieber's Translation of the 
Penitentiary System in the United States, by Messrs. de Beaumont and de Tocque- 
ville, Philadelphia, 1833, page xiii. et seq. 



140 



THE STATE. 



in his repeatedly quoted Animal Kingdom (vol. i. pages jd, 
77), says, "The nearly equal number of individuals of the 
sexes, and the difficulty of nourishing more than one wife 
when riches do not supply physical strength, show that 
monogamy is that sort of connection which is natural to our 
species, as well as the fact that among all those animals with 
whom this species of union exists, the father takes part in the 
rearing of the child." Where polygamy is lawful, few avail 
themselves of this permission, simply because the support of 
several wives with their offspring requires means beyond the 
reach of far the greater majority of people. On the other 
hand, it will generally be found that those who can support 
several wives select one in particular who is pre-eminently 
considered the companion to the master of the house. In 
many cases she is distinguished by a peculiar title. The 
Greeks mentioned it as an important step in civilizing their 
country, that the mythical Cecrops established monogamy. 
They knew monogamy only;' so did the Romans. They 
held this most elementary of all institutions and first requi- 
site of civilization in high honor, until the period of universal 
degeneracy under the emperors, and then even did the im- 
perial laws evince that marriage, viewed with regard to the 
merest political utility, is of essential importance ; as like- 
wise late statistical accounts seem satisfactorily to prove that 
concubinage extends its enervation to the offspring.^ Cato 
the Censor said, according to Plutarch, that he considered an 
honest husband higher than a great senator, and Ulysses, 
returning from war and glory, wishes kind Nausicaa, for all 
her humanity shown him, a husband and a house. " May 
the gods grant thee all thy heart desires, a husband and a 
house; and bless you with peace and concord. Happy ones! 



« The tales of the bigamy of Socrates and Euripides have long been disproved. 
Two cases only form an exception, that of Anaxandrides in Sparta, obliged to 
take a second wife on political grounds (Herod., 5, 40), and of Dionysius the 
El<f-er, of Syracuse (Diod., 14, 44). 

« See chap. iii. of the first book of Qu6telet sur I'Homme et le D6veloppement 
de ies Facult^s, Paris, 1835. 



PATRIOTISM. 141 

Nothing, in truth, is more desirable and rejoicing than when 
husband and wife, united in faithful love, administer quietly 
their house — a bitter sight to the enemy, but a delight to the 
friend." (Odyssey, 6, 180 et seq.) 

XXV. It is in the family, between parents and children, 
and sisters and brothers, that those strong sympathies and 
deep-rooted affections grow up which become the vital spark 
of so many good actions, which are the medium through 
which we view other and vaster spheres with purer, intenser 
feelings, and which survive those blasts of later life which 
would fain chill most hearts into cold egotism. With them 
is mingled and a thousandfold entwined all that attachment 
which expands into patriotism — that warm devotion to our 
country which loves to dwell in every noble heart, and with* 
out which no free state can long exist. The love of our 
parents, of our children, of our brothers and sisters, makes 
patriotism a thrilling reality. Why is it, otherwise, an ex- 
pression which goes through all centuries and appeals di- 
rectly to every soul to fight for our hearths ? Why has the 
word hearth been chosen for country ? Because there we see 
it most clearly, feel it most deeply. Return from an arduous 
war, from a long absence, and see the first high mountains of 
your country ; it is a happy feeling indeed, but it is more 
thrilling still when you see the stile which leads to your 
father's meadow. Why does the word home speak so di- 
rectly to our heart ? Because the home contains what is 
choicest for us in the country. How full of meaning are the 
words " bound home," when they sound from a vessel which 
you pass, yourself sailing to distant climes ! 

Leonidas, when he prepared himself for his heroic sacrifice 
and selected those who were honored to die with him, chose 
men of a mature age and who had children. The sight of 
Rome could not melt the stern heart of Coriolanus ; his wife 
and mother could. When a hero, with encircled brow, has 
passed through the crowded streets, and has received the 
thanks of his country in the capitol, and his heart is big with 



142 THE STATE. 

glory and throbs with joy, he hastens home to drink the joy 
of joys, in the arms of his wife and his parents. When he is 
doomed to die a martyr to his country, as Padilla, Egmont, 
or Barneveldt, his last words are directed to his wife, to his 
children, to his family. These ties, indeed, must be severed 
when the alternative is between family and country ; so must 
at times the love of country yield, when the alternative is 
between it and the love of mankind. (See Patriotism.) When 
Timoleon saw he could not prevail on his brother Timophanes 
to desist from his tyrannical course of usurpation, the faithful 
lover of liberty conspired even against him, but still ** Timo- 
leon stepped aside, and stood weeping, with his face covered, 
while the other two drew their swords" and slew the tyrant. 
When Arnold Winkelried, in the battle at Sempach, saw that 
his countrymen could not advance against the dense wall of 
Austrian lances, he stepped forward and said, " Dear confed 
erates, I'll break a path for you ; think of my wife and dearest 
children," and buried in his breast as many lances as he could 
clasp, and tore them down with him. But who can say how 
much at that very moment the thought urged him that he 
would purchase liberty with his blood for the land of his very 
children ? 

XXVI. The family is the focus of patriotism. Public spirit, 
patriotism, devotion to our country, are nurtured by family 
ties, by the attachment to our community, the interest in our 
country, the associations with our district, our province, as 
the love of our country enables us best to understand the 
deeds of other nations. We have little regard for a man who 
loves his country in general, in the abstract, and does not 
take an interest in the improvement or embellishment of his 
own place. A man who does not love his hamlet will not 
die for his country, still less live, labor, toil for his nation. 
We shall presently see how mistaken those are who believe 
that the state is nothing but an association founded upon 
material interest, and not a society of closely united men. If 
they were r-ght, the state might dispense with public spirit* 



IMPORTANCE OF THE FAMILY. 



143 



but it cannot. Where public spirit has departed, the common- 
wealth is corrupt; but public spirit is generated first in the 
family, for through it we are in a visible and tangible way 
connected with what otherwise would remain for most men a 
bare abstract idea, unable to animate, raise, inspire, cheer on, 
and prepare for sacrifices. The members of a state are not 
wheels of clock-work, working, indeed, with each other, but 
not feeling for one another. Let sympathy and disinterested 
affection come whence it may, so that we have it — a refresh- 
ing dew upon the arid fields of practical life. 

XXVII. The Jesuits condemn the love of our kinsmen as 
a carnal inclination,^ and they praise a member of their so- 
ciety for having so entirely conquered his feelings that he 
could quietly pass his native place after a long absence, and in 
spite of the strongest desire to see his relations.^ But so is 
parental love, in its origin, carnal ; so is marriage, which we 
have found to be so important an element of civilization, 
originally founded in the material world. It is a principle in 
nature that the first impulse is given by the physical world, 
by relations of matter ; but we have to develop, perfect, trans- 
form, ennoble, spiritualize them. It is a well-known fact that 
the vast machinery of industry, so necessary to civilization, is 
chiefly set in motion by the wants of man to satisfy his appe- 
tite, far more so than by the want of protecting his body or 
the necessity of clothing and housing. Cest lafaim, c'est le petit 
ventre qui fait mouvoir le mo^tde, said Napoleon (Las Cases, 
vol. V. p. 32, Paris edit, of 1824). But is, on this account, all in- 
dustry a mere matter of the belly ? There are, at times, higher 
considerations than those of our family and our country ; but 
take these elements away, and you blot out at once a thou- 
sand of our noblest emotions, most effective agents of the 
moral world, and surest principles of society. There is much 



* Summarium Constitutionum, \ 8, in the Corpus Institutorum Societatis Jesu. 
Antwerpiae, 1709, t. i. 

a Orlandinus, iii. 66, mentions the case. The Jesuit's name was Faber. 



144 ^^^ STATE. 

truth in the remark of Madame de Stael, that " it is necessary 
to make the choice of our object with enthusiasm (if we only 
understand this word right), but we must march towards it by 
the aid of character. Thought is nothing without enthu- 
siasm, nor action without character. Enthusiasm is every- 
thing for literary nations ; character is everything for acting 
nations; free nations are in need of one and the other." ^ And 
what kindles this enthusiasm, by which we are to understand 
an inspired attachment to what is good and great, independ- 
ent of the calculations of interest ? Chiefly the family and a 
noble and inspiring history of our own nation. 

If ancient philosophers maintain that, according to the 
example of the Lacedaemonians, the family ought to be abol- 
ished, and even Plato, in his Republic, proposes to take the 
new-born babes from the parents of the first class of citizens 
who had been previously united by the state, with a view of 
propagating a sound race, it will be easy to understand them, 
after we shall have seen the essential difference between the 
views which the ancients took of the state and its object, and 
those of modern times. When, however, modern writers pro- 
pose a similar annihilation of the family, as some actually have 
done, it only shows that they have no correct views of man's 
individual value, of the family, and of what they ought to be 
in modern times, or that they have proposed a false remedy 
for the existing evils in private education. 



• De PAllemagne, par Mme. de Stael- Holstein, Paris, 1810, tome vi. p. 90. 



CHAPTER IV. 

What is the State? — By what Characteristics does it differ from the Family? — 
The State a Society. — Various Human Societies, according to the various Re- 
lations. — Relations of Consanguinity, Exchange, Comity, Intellectual Commu- 
nion, of Right, — What is Right ? — The State is the Society of Right. — The 
Just is its Fundamental Idea. — Objects of the State. — What is Protection ? — ■ 
The State requires General Rules ; its Members are not absorbed by it ; every 
one has Claims upon it; it is a Moral Society; it exists of Necessity. — The 
State remains a Means. — The Individual above the State ; the State above the 
Individual. — The State, as such, has Rights and Obligations; the State does 
not make Rights, but acknowledges them. — Civilized States far the most 
powerful. — Man by Nature a Political Being. — Man never exists without the 
State. — The State is no Insurance Company. — Protection of Life and Property 
not the only Objects, nor the highest. 

XXVIII. The family, however important, is not a suffi- 
ciently extended society to lead man to his great destiny — to 
civilization. Men must live in wider unions, they have to 
establish relations and to develop ideas, which can never be 
fully obtained in the family alone. A union of a different 
character is required — it is called the State. The prevailing 
idea in the family, that determines the character of the inter- 
course between the members, is mutual attachment depending 
on personal relations, to which man is first induced by the 
ties of consanguinity, on kindness and forbearance, on a de- 
gree of disregard of one's own personal considerations. That 
which renders the family so admirable, so holy, is love, and a 
continued forgetfulness of a separate individual interest. The 
fundamental idea of the state, on the other hand, is justice, 
the right which exists between man and man. That which 
renders the state so great and important is, that it maintains 
right, protects and is a continual guard over the individual 
right of every one ; that it demands of no member an obliga- 
tion on his side alone, but knows of mutual obligations only. 
There shall be no duty in the state for the performance of 

lo 145 



146 THE STATE. 

which the citizen does not receive an equivalent. Family and 
state, then, do not only differ as to size, but they differ in their 
characteristics and essentials, whatever confusion to the con- 
trary may in many parts of the world exist. The monarch is 
frequently represented as the father of his subjects ; and this 
misrepresentation alone has caused mankind to pass through 
infinite suffering. In few instances has the danger of analogy 
shown itself more banefully than in this. It has induced peo- 
ple to establish claims, or to submit to them, which are cal- 
culated to throw society into disorder, and to lead it to those 
disastrous consequences which never fail to be the effect of 
mistaken notions respecting elementary principles of society.^ 
Still, I do not mean to say that in the course of civilization 
stages were not necessary, in which the ideas of family and 
state were yet closely interwoven with one another, and were 
mixed up in the patriarch ; nor that the state in many in- 
stances actually did not grow out of the family. The Asiatic 
nations prove this fact. The family grows into a tribe, the 
tribe into a nation ; "^ and even with those nations and states 
which originated from a fusion of many discordant elements, 
as the noble people of Attica out of the mixture of Pelasgi, 



» * [From a long papei- left by Dr. Lieber we select the following passages :] 
If the principle of the family is applied to a state of any extent, in which per- 
sonal acquaintance and attachment of some degree becomes impossible, if the 
patria potestas is applied to the state, or, as the Chinese say, filial duty is the 
base of the state, it cannot otherwise than lead to absolutism and tyranny. For 
we have seen that one of the characteristics of the family is the discarding of 
strict right and the adhering to mutual attachment, while the just authority of the 
parent is restricted only by this personal attachment and the natural relations of 
consanguinity. But this personal attachment cannot exist in an extensive state, 
and but in a very limited degree in the smallest one, so that nothing remains but 
unlimited authority without the moral control existing in the parental relation. 
THe then illustrates what he has said by the state of things in China, citing 
especially Davis's Chinese, u. s. i. 202.] 

2 I know of no more striking instance of divisions and subdivisions according 
to family relationship, and a government founded upon it, than the one described 
by the Hon. Mountstuart Elphinstone, in his Account of the Kingdom of Caubul, 
etc., London, 1815, chap. ii. p. 158, et seq. Mr. Elphinstone was sent as envoy 
to the king of Caubul. The work is valuable in many respects. 



VARIOUS SOCIETIES. 



H7 



lonians, and others, and the British nation out of Britons, Ro- 
mans, Saxons, Danes, and Normans, the state grew originally 
out of the family, in so far as the idea of justice grew with its 
enlargement; but everything, every institution, every art, 
every science, begins in an undefined state, mixed up with 
others, and is more distinctly developed only with the pro 
gress of civilization. Medicine, architecture, and the ministry 
are, at present, questionless three very distinct employments, 
though originally all three were united and undistinguished 
from one another in the priest. Painting and writing were at 
first the same thing, they are now essentially different things. 

XXIX. Again, what is the state? All civilized nations are 
now agreed that the state is a society ; no man will be so 
bold as to pretend that an individual, a monarch, can be the 
state, as Louis XIV., when a boy, asserted of himself As 
to the essential character of the state, however, its true foun- 
dation and origin, its aim and object, power and extent, peo- 
ple are not agreed. Let us see whether it be not possible to 
arrive at a satisfactory answer to so momentous a question. 

The state is a society. What is a society ? A society is a 
number of individuals between all of whom exists the same 
relation — the same as to its principle, however modified it 
may be in other respects ; or it is a number of individuals 
vrho have the same interest and strive unitedly for it. The 
individuals or members of a society exercise, therefore, a 
rrore or less intense influence upon one another. The Cath- 
olic Church is a society; between all members, the cardinal 
and lowest layman, exists the relation of religion and the same 
religious discipline. These fundamental relations constitute 
the peculiar character of the society, and are called its ties. 
Societies may be temporary unions with stated objects, or 
they may rest on relations not entirely or not at all control- 
lable by the members — on ^iven relations, with general objects 
chiefly to be learned from the fundamental relations them- 
selves between the members. By way of greater distinction, 
I would call the former associations companies, the latter, 



148 



THE STATE, 



by way of excellence, societies. Insurance companies, chari- 
table societies, academies of science, are associations; nations, 
states, communities, are societies. 

Now, all the relations in which man may be placed are : 

Relations to things, comprehending within this term ani 
mate and inanimate things. Property, as we have seen, rests 
on one of these relations. 

Relations between man and man. 

Relations between man as the creature, the made being, 
and his Creator or Maker, or between man as the inferior 
and guided being, and the superior and guiding being. All 
that appertains to these relations is included in the compre- 
hensive term of religion. 

The chief relations between man and man seem to be 
these : 

1. The relation of consanguinity. One of the societies 
resting on this relation is the family. 

2. The relation of exchange. Labor must be divided, as 
we have seen, and men stand in constant need of each other 
according to the individual and territorial division of labor. 
The shoemaker must have bread from the baker; the German 
wants rice from the Carolinian, and sends linen to the South 
American. Let us call this the catallactic or diallactic rela- 
tion, from xaraXXdffffiOj or diaXXdaao), to exchange. Catallactics 
is far the best name which has been proposed for political 
economy. The name is peculiarly apt, for the Greek word 
does not only mean to exchange, but also to exchange hatred, 
to reconcile, and what reconciles man to man, nation to nation, 
more powerfully and originally than the exchange of their 
produce ? By the catallactic relation I understand the ex- 
change of labor, produce, service, capital, and skill, by way of 
value, in the sense in which it is taken in political economy, 
not the exchange of thoughts, sentiments, discoveries. The 
catallactic relations form one of the original, most enduring, 
active, and indestructible ties of society^ and the society 



RELATIONS OF SOCIETY. j^g 

founded upon it has, consequently, been mistaken for the 
state. Plato commits this error, and when he supposes that 
he shows the origin and true character of the state (in the 
second book of his Republic), he only shows the origin of 
the catallactic society ; but this society may be narrower or 
wider than the state. Nothing is more common than that 
the citizens on the frontier of one state have a constant catal- 
lactic intercourse with their neighbors of another state, and 
hardly any with their fellow-citizens of the interior. That 
Plato committed this error can easily be accounted for. Most 
Greek states were cities ; they had but one word for both ; 
the idea of a city community was ever before his eyes when 
he reasoned on the state. It is very difficult to elevate our- 
selves above associations which have their foundation in 
everything that surrounds us. Thus, the fact that in Europe, 
or on the whole earth, there are far more monarchies than 
republics, has, with few exceptions, strongly affected all the 
reasoning of European writers on the state so decidedly, that 
the effect extends to their arguments on the origin of the 
state. No one can study Hobbes without perceiving it. Sub- 
ject and citizen are inadvertently used by many as convert- 
ible terms. Yet monarchy, republic, despotism, etc., are but 
subdivisions of the same class. ^ 

3. The relation of comity, under which I comprehend all 
that is called, in common parlance, social intercourse, with 
all the views, opinions, enjoyments, prejudices, and sufferings 
connected therewith. 

4. The intellectual relations, to which belong the many 
strong ties which grow out of a constant exchange of 



* * The fact that Rousseau lived in a small republic, with much of a demo 
cratic element in it, influenced his writings much : his Social Contract would 
never have formed itself as it is in a large state. How much have the United 
States affected me ? The fact that I live in a large republic was probably favor- 
able. Perhaps I too am unconsciously affected. Yet I have lived under many 
other governments, and where there was none at all — in Greece. 



I50 THE STATE. 

thoughts, feelings, and taste, as uttered in speaking or v/rit- 
ing, the strong ties of a common language and literature, of 
the fine arts, sciences, and national custom. The society 
founded on this relation extends, in Germany for instance, 
far beyond the states. It is very naturally the strongest of 
all ties in the general course of things. Sometimes pecu- 
liar reasons will make other relations for a time more active, 
A bond which frequently rivals it is the relation of religion ; 
both strongly affect the inner man — his feelings, and therefore 
the direction of his thoughts. The Belgians felt more sym- 
pathy with the French, as long as they belonged to the king- 
dom of the Netherlands, than with the Dutch. 

5. The relation of right. The society founded upon this 
relation is the state. What is right ? 

XXX. Man, it has been shown, is a moral individual, yet 
bound to live in society. He is a being with free agency — 
freedom of action ; but, as all his fellow-men with whom he 
lives in contact are equally beings with free agency, each 
making the same claim of freedom of action, there results 
from it the necessity, founded in reason, i.e. the law, that the 
use of freedom by one rational being must not contradict or 
counteract the use of liberty by another rational being. ,The 
relation which thus exists between these rational beings, this 
demand of what is just made by each upon each, is the rela- 
tion oi right ; and the society founded upon this basis, which 
exists because right ^jus) in its primordial sense exists and 
ought to exist between men, which has to uphold and insist 
upon it, which has to enforce it, since every man has a right 
to be a man, that is, a free-acting or rational being, because 
he is a man — this society is the state. 

Right is that which I claim as just, because necessary to 
me as man and granted by me to others ; it is the condition 
of men's union, that by which man's individuality or person- 
ality on the one hand, and sociality on the other, can coexist. 
This is the most comprehensive meaning of the word, and 



THE STATE MUST PROTECT. 151 

applies to what I have called the society of comity as well as 
to the state. We say, as to social intercourse, every man has 
a right to call on another. What, then, are the rights, in par- 
ticular, on which the state is built? Are the relations of 
social intercourse unimportant ? Far from it ; in many cases 
they are of utmost importance to the whole well-being of 
man, and even outweigh the relations of which the state takes 
notice by positive law. A negro may, according to the con- 
stitution of some of the United States, vote, and is not legally 
prevented from obtaining any the highest office, or from be 
coming among other things teacher in a university; he has 
the political right or the right guaranteed by the state. Yet 
there is for the present no earthly chance for a colored man 
to become mayor of Boston, because the society of comity 
denies him the right ; the white race feel repugnance at close 
association with him ; the difference of race has established 
in a degree a difference of sympathy. Should then not the 
state enforce this right of the negro ? Enforce what ? Oblige 
whites to invite the African ? Would not the whites complain 
of interference with their right of being perfectly independent 
at home ? And here we have arrived at the proper distinc- 
tion. 

The state is founded on those rights which are essential to 
all members, and which can be enforced. Political enfran- 
chisement was for a long time not as important to the Jews 
in Europe as social enfranchisement; in fact, they justly con- 
sidered the former but as the stepping-stone to the latter; 
still, the latter could be made no state relation, it could not 
be legislated upon. Frequently it will happen that social 
rights finally become acknowledged by the state; so will 
rights originally belonging to catallactic society. We call 
rights, by way of excellence, those rights on which the state 
is founded, or enforceable rights. 

The state, then, is that society which has to protect the free 
action of every one, as its first basis ; and, as all the other 
enumerated relations imply action (for with the exception of 
the relation of consanguinity all manifest themselves in somf^" 



152 THE STATE, 

way or other by action), each of these relations becomes like- 
wise a relation of right, either claiming to be enforced or to 
be protected against infringement. If a father amuses his 
children with soap-bubbles, it is an action of a very private 
character indeed ; yet the moment that another would wilfully 
interfere, the state is bound to protect the father. A cat is, 
generally speaking, a subject of no public interest, but actions 
have been brought and sustained against the wilful destroyers 
of a favorite cat. The exchange of my labor or superfluity 
for other commodities must be protected. My fancies, my 
very follies, if they do not interfere with the rights of others, 
must be protected. However droll a will may be, if not im- 
moral, it must be protected. In this sense the state is the 
society of societies. The state does not beg, invite, request, 
implore — the state demands, it speaks through laws, laws 
which command, that is, which must be obeyed. If it were 
to ask something for the sake of love, or good will, of one, it 
would neglect the other, whose right may have been trans- 
gressed, or whose right may be involved in the execution of 
the law. 

XXXI. The state, I said, is founded on the relations of 
right; it is a jicral^ society, as a church is a religious society, 



' If there is no word which distinctly represents our idea, to express which we 
nevertheless consider of much importance, a new one must necessarily be made^ 
or we slavishly subject the mind to the language, the object to the means. How 
else is the idea to be expressed ? Should I say that the state is a political so- 
ciety ? This is nothing but arguing in a circle, which would be at once appa 
rent had we adopted the Greek for the noun as well as the adjective, and were 
to say, polis is a political society. No doubt it is; so is a cat a feline animal, 
and sugar a saccharine substance. I stood in need of a word which bears the 
same relation to state, as society, that the word religious has to church. The 
church is a religious society. We would express nothing by stating that the 
church (ecclesia) is an ecclesiastical society. If the word is not in good taste, if 
it does not strike the ear well, I can only say, I could find no better one than 
this, similar to rural from rus. The Greek language has no different words for 
iex and jus, v6[ioc, as the English has but law, while the French have droit and 
loi, the Germans Recht and Gesetz. The word legal, it will at once be seen, signi- 
fies something entirely different from jural. Jural relations exist before and 



THE STATE A JURAL SOCIETY, 153 

or an insurance company a financial association. The idea 
of the just, and the action founded upon this idea, called 
justice, is the broad foundation and great object of the state. 
Bracton^ says, ** Quia a justitia (quasi a quodam fonte) omnia 
jura emanant, et quod vult justitia, idem jus prosequitur: 
videamus ergo quid sit justitia et unde dicatur: Item quid 
sit jus et unde dicatur et quae sunt ejus praecepta." It is 
very easy to write nowadays better Latin than this old jurist, 
but not to write better sense than this. Our idea of what the 
state is, is precisely expressed by Cicero (de Republ., i. 32), 



without laws. The very want of Avords has misled many who have written on 
the subject; as if right were made by law; rights, privileges are made, but not 
right, jus — the cequitas communis, csquum universale. 

I ask permission to quote here an extract from a work of that acute reasoner, 
St. Augustine, being in point as to the subject of the above paragraph : 

" Quapropter nunc est locus, ut quam potero breviter ac dilucide expediam 
quod in secundo hujus operis libro me demonstraturum esse promisi, secundum 
definitiones, quibus apud Ciceronem utitur Scipio in libris de republica, num- 
quam rempublicam fuisse Romanam. Breviter enim rempublicam definit esse 
rem populi. Quae definitio si vera est, numquam fuit Romana respublica ; quia 
numquam fuit res populi ; quam definitionem voluit esse reipublicse. Populum 
enim esse definivit coetum multitudinis, juris consensu et utilitatis communione so- 
ciatum. Quid autem dicat juris consensum disputando explicat ; per hoc osten- 
dens geri sine justitia non posse rempublicam ; ubi ergo justitia vera non est, nee 
jus potest esse. Quod enim jure fit, profecto juste fit. Quod autem fit injuste, 
nee jure fieri potest. Non enim jura dicenda sunt vel putanda iniqua hominum 
constituta; cum illud etiam ipsi jus esse dicant, quod de justitise fonte manaverit; 
falsumque esse quod a quibusdam non recte sentientihus dici solet, id esse jus, 
quod ei qui plus potest, utile est. Quocirca ubi non est vera justitia, juris con- 
sensu societas ccetus hominum non potest esse ; et ideo nee populus, juxta illam 
Scipionis vel Ciceronis definitionem, et si non populus, nee reS- populi; sed qualis- 
cumque multitudinis, quge populi nomine digna non est. Ac per hoc si respub- 
lica res populi est, et populus non est qui consensu non sociatus est juris, non est 
autem jus, ubi nulla justitia est ; procul dubio colligitur, ubi justitia non est, non 
esse rempublicam. Justitia porro ea virtus est quae sua cuique distribuit. Quae 
igitur justitia est hominis, quae ipsum hominem Deo vero tollit et immundis da^- 
monibus subdit ? Hoccine est sua cuique distribuere ? An qui fundum aufert 
ei a quo emptus est, et tradit ei qui nihil in eo habet juris, injustus est; et qui 
se ipsum aufert dominanti Deo, a quo factus est, et malignis servit spiritibus 
Justus est?" De Civitate Dei, lib. xix. cap. 21. 

» Henry Bracton, who lived in the thirteenth century, De Legibus et Consuetu- 
dinibus Angliae, lib. iv. c. 4. 



154 THE STATE. 

"Quid enim est civitas nisi juris societas ?" More pithily it 
has been expressed by Cousin (Cours d'Hist de la Philos., 
Paris, 1828, p. 14), "La justice constituee, c'est I'etat." Of 
this justice let us adopt Ulpian's definition, " constans et per- 
petua voluntas suum cuique tribuens," provided we under- 
stand by voluntas not potentia volendi sed actus, and connect 
with suum cuique not the limited view of property or personal 
safety, but this and much more, namely, the great object of 
society, of which more presently. See also the interesting 
account of the jural origin and character of the state in Herod., 
i. 96, et seq. Whether true or not, it presents the views of 
the people at that early period.^ 



* I will transcribe the translation of this very curious passage: "There was a 
man among the Medes of the name of Deioces, a son of Phraortes, of great wis- 
dom, who longed for power, and he acted thus ; The Medes lived about in their 
hamlets, and as he enjoyed already great reputation in his own, he practised jus- 
tice still more attentively and zealously. And this he did, because lawlessness 
was great throughout Media, and he knew well how the just hated injustice. 
And the Medes of his place, as they saw how he did, made him their judge, and 
because his eyes were directed to the supreme place, he acted fairly and justly, 
by which he gained no little praise with his fellow-citizens, so that those who 
lived in the other hamlets, when they learned how Deioces judged according to 
justice only, since they themselves had suffered already by unjust sentences 
when they heard of this, went with pleasure to Deioces, that he might give judg- 
ment to them too, and at length they went to no one else any longer. But when 
the number of those who repaired to him went on increasing, because they per- 
ceived that his sentences were always according to wisdom, and Deioces saw 
that everything depended upon him, he declined any longer to sit in judgment, 
and said that he would not any longer be judge ; for he had no leisure to decide 
cases for others every day and thus to neglect his own affairs. When after this, 
violence and lawlessness in the places about became worse than before, the 
Medes assembled, and held council with one another, and consulted on their 
situation. The friends of Deioces may, as it seems to me, have spoken thus : * If 
things remain as they are now, we cannot dwell any longer in our land. Up, 
then ! let us elect a king, and our land will be ruled according to right, and we 
may go to our work, and we need not leave our country on account of lawless 
ness.' Thus they spake, and persuaded the Medes, so that they elected them- 
selves a king. And soon they consulted whom they would place above themselves 
as king, and Deioces was proposed on all hands, and much praised, until at 
length they unanimously resolved he should be their king." Perhaps it is worth 
while to mention here that the ancient jurists of Aragon believed, according to a 
tradition, that the famous institution of the justicia originated at the same time 



THE JUST, THE BASIS OF THE STATE. 155 

At all times has justice been considered as the main, or 
one of the chief objects of the state, though, in many in- 
stances, by justice nothing more than protection of person and 
property, or rather punishment of offenders, was understood.^ 
To protect the widows and orphans (that is, the weak) was in- 
variably given as one of the chief reasons why power — the 
sword— had been given to monarchs. " The saints have said 
that the king is placed on earth in place of God to fulfil jus- 
tice and to give to every one his right and due [su derechd)^ 
and as the soul is in the heart and gives it life, so is justice 
in the king," ^ was the Spanish view at the times of Columbus. 
Every coronation oath, every admonition of monarchs, points 
to it from early times. (See the Civil Law, and Luther on the 
Duties of a Prince in vol. v. p. 1041, et seq.) Even Timur, 
while he praises his government chiefly for having admin- 
istered justice and supported religion, founds even his right 
of conquest on justice, to expel iniquity, tyranny, and oppres- 
sion.3 Hence the early and universal distinction between the 
individual invested with the crown and the regal office itself, 
notwithstanding the extravagant and not unfrequently ab- 
surd theories, which strive absolutely to confound the per- 
son of the king and his office, to the contrary. Whatever may 
be advanced under the hallucination of divine absolutism, it is 
impossible to carry out the theory, and no principle of gov- 



with the election of the king. Thus wrote Juan Ximenez Cerdan, a most es- 
teemed Aragonese publicist, in 1435, to the justicia. According to some, the 
justicia was elected before the king. (E. A. Schmidt, Gesch. Arag., p. 409.) 

» It is interesting, on this account, among so many others, to read large and 
contiguous collections of the charters, compacts, etc., of a nation, such as, Re- 
cueil General des anciennes lois Fran^ais depuis I'An 420 jusqu'a la Revolution 
de 1789, by Decrusy, Isambert, and Jourdan, Paris. 

» This passage is contained in the appointment of Columbus as Admiral of the 
Indies, to be found in the Codice Diplomatico Colombo- Americano ossia Rac- 
colta di Documenti originali e inediti spettanti a Cristofoio Colombo, alia sco- 
perta ed al governo dell' America, Genova, 1823, 4to, pages 47 and 63. 

3 Inscitutes, Political and Military, written originally in the Mogul Language 
by the Great Timour, first translated into Persian, etc., and thence into English, 
by Major Davy, Persian Secretary to the Commander-in-Chief of the Bengal 
Forces, Oxford, 1783, 4to, page 331. 



156 THE STATE, 

ernment proves the distinction more clearly than absolutism 
itself. Suppose an absolute king to be attacked by a violent 
fever ; he raves ; the physician orders him to be held, and 
does the very contrary from what the delirious monarch de- 
mands. Is there in this case no difference between monarch 
and crown? Suppose, farther, the king's disease ends in 
derangement of mind, the successor declares himself or is de- 
clared king, or regent. Is there no difference made between 
the individual and the crown he personates ? Whence is the 
right derived of superseding the unfortunate predecessor ? 
He still exists individually. The English made a very early 
distinction between a resolution in the king's breast and a 
resolution of the king in council, or voluntas interna seu na- 
turalis and externa seu legalis. (See Hampden's Trial for 
ship-money. State Trials, vol. iii. p. 861.) So distinctly was 
the difference acknowledged by the English long ago that, 
though all justice is administered in the monarch's name, his 
presence at the trial of Earl Strafford was not considered as 
official ; because " in his presence, by legal construction (by a 
most philosophic view), no judicial act could legally be done." 
The throne was empty, and Charles was in a box with 
trellis-work. But Baillie says that the king broke down the 
screens, so the court sat in the eyes of all ; yet they were con- 
sidered officially absent, " and the lords sat covered." (Baillie, 
principal of Glasgow College, was present.) The parliament 
of Paris declared, in 1648, that the words, sur le bon plaisir du 
roi (or, car tel est notre plaisir), are used to give a degree of 
respect to the government of the king, by no means to sanc- 
tion that which is irrational, or to signify that he needs no 
council. (Portal., 167.) And this was under Mazarin, imme- 
diately after Richelieu's administration. 

XXXII. All relations existing in the state, or all strictly 
political relations, are relations of right — jural relations. The 
individual demands of the state that his right — his jural rela- 
tion to others — be maintained inviolate, and the state demands 
that the individual do not interfere with the right of others. 



WHAT PROTECTION IS. 



157 



or, in other words, do not disturb their jural relations. Finally, 
the individual, being unable to obtain those ends for which he 
was placed on earth or made a man, in a state of insulation, 
but being compelled, by a necessity founded in his very 
nature, to live in society, it is matter of right that he obtain 
through and conjointly with society what he cannot obtain 
singly, and what, nevertheless, is essential to his well-being 
as man. The state, therefore, has the right and the duty to 
obtain all these ends by the combined energy of society for 
each individual. We see thus that protection in its wide and 
true meaning, not in its narrow sense, signifying nothing more 
than a prevention of individual injury — that protection is the 
aim and object of the state, and that this protection is but 
another word for justice, in its broad adaptation, the obtain- 
ing and granting of that which every one demands of right, 
and as moral individual ought to demand — his due. We find 
thus that protection includes : 

1. Individual security, which demands two things : 

a. Protection against individual injury, or interference with 
me and my actions individually, that is, protection of life, 
limb, labor, property (which includes the owning of things 
and the acquiring of things, or use and appropriation of 
things unappropriated, and exchange), utterance or converse 
(speech and writing), honor (or reputation), virtue, religion, 
and family relations. 

b. Making certain that which is uncertain ; for uncertainty 
in matters of right is insecurity. 

2. Social security, the protection of society as such. 

3. The protection of each member as that being who cannot 
obtain save in conjunction with others, or through and in 
society, his great ends of humanity — those ends which are 
necessary, and yet cannot be obtained by the single man. 

XXXIII. Every man is a being who has a moral character 
of his own, he cannot divest himself of individuality, and yet 
he is what he ought to be in society only. These three points 
are of fundamental importance in the state. If men have to 



158 THE STATE. 

live together, and yet must remain individuals, with individual 
pursuits, individual objects, individual desires and appetites, it 
follows that — 

1. They must closely unite to obtain those objects which 
are of equal importance to all. 

2. They must follow certain rules important for all, with- 
out which their individual interests would continually clash 
with one another, and society would become a far worse 
state than perfect insulation. Indeed, it is impossible to 
imagine any number of individuals living together without 
observing certain rules, nor do we ever find any such society, 
for whatever purpose its members may have united. This 
necessity of observing certain rules implies the necessity of a 
power to enforce compliance. Without it, the rules would be 
useless in a society which is a society of right, and exists of 
necessity, not of option, nor a society of charity or love. 

3. The members of this society never lose their individual 
character ; they are not merged in the state ; but their indi- 
vidual character, and with it those things which are necessary 
for it or comprehended in it, as life, free agency, or freedom 
of action, that is, the right of doing everything they choose 
to do, provided it do not militate with the freedom of action 
equally claimed by others, must be firmly and effectually pro- 
tected. 

4. Each individual has an undeniable right to live in society 
and to share its advantages, because he must of necessity 
live in society; and absolute necessity, that is, that necessity 
which results from the essential nature of man, is the first of 
all rights, which is, in other words, but what I stated above, 
when I said, the axiom of all natural law is, I am a man, 
therefore I have a right to be a man. Absolute necessity does 
not make right — a sentence often misused to represent, as 
right, what is wrong, though expedient — but absolute neces- 
sity is right. 

5. The state being a jural society, and rights being imagi- 
nable between moral beings only, it follows that the state has 
likewise a moral character and must maintain it. From what 



ESSENCE OF THE STATE. 159 

constitutes right, as has been shown, it appears that no right, 
consequently no specific rights, can exist between animals or 
irrational beings, since the right is founded on the claim each 
rational or moral being makes on every other rational or 
moral being. 

6. Human society exists of necessity, and the state being 
part of the human society (with what specific characteristic, 
to make it a specific state, we shall see presently), in which 
the ideas of right and the means to obtain and protect it are 
more or less clearly developed, it exists likewise of necessity. 
Man cannot live without the state; it is necessary to his 
nature ; the state is one of the natural states of man. This 
probably was meant by the celebrated Selden, when he says, 
" But in truth, and to speak without perverse affectation, all 
laws in general are originally equally ancient. All were 
grounded upon nature, and no nation was, that out of it took 
not their grounds ; and nature being the same in all, the be- 
ginning of all laws must be the same." (Selden's note to 
Fortescue, De Laud. Leg. Angliae, chap, xviii. note g, p. 33, 2d 
ed., 1741.) And what is this nature? The imprint of all 
created things stamped upon them by their Creator ; the vital 
principle of life he laid down as the foundation of their essence 
and being. " Laws," says Harrington, in his Political Aphor- 
isms, " are founded in nature. Nature is God."^ "In the 
name of God," are the words with which the compact, made on 
board the May Flower, November 11, 1620, begins. (Charters 
and Laws of the Colony of New Plymouth, Boston, Mass., 
1836, p. 19.) To follow nature, thus understood, is the dettm 
sequi of Seneca. 

7. The state always remains a means, yet it is the most 
indispensable means to obtain the highest end, that man be 
truly man. The saliis populi, not the salus civitatis, is the 
siiprema lex. The state exists to obtain or maintain the weal 
of the people ; but we must beware not to give a mean sig- 



« " Item author justitiae est deus, secundum quod justitia est in creatore, 
Bracton, de Leg. et Consuet. Anglise, lib. i. c. 3. 



l6o THE STATE. 

nification, perhaps mere physical well-being, to this term of 
common weal, or salus popiili. 

On the one hand, the individual stands incalculably higher 
than the state ; for that he may be able to be all that he ought 
to be, the state exists, and each individual has that over which 
the state can never extend, because it cannot be drawn into 
jural relations, and because it will outlive the state — the soul. 
" Over the soul can and will God allow no one to rule but 
himself alone," says Luther,^ who had no extensive views of 
individual civil liberty beyond what touched the religious 
liberties, nor could it well be expected of him. 

On the other hand, the state stands incalculably above the 
individual, is worthy of every sacrifice, of life and goods, of 
wife and children, for it is the society of societies, the sacred 
union by which the Creator leads man to civilization, the bond, 
the pacifier, the humanizer, of men, the protector of all under- 
takings in which and through which the individual has received 
its character, and which is the staff and shield of society. Not 
that I am guilty of the egregious folly of believing that every- 
thing in the state is good, that the authorities established by 
the state may not sanction unwise, bad, wicked things, "Jam 
vero stultissimum illud existimare omnia justa esse, qu^e sita 
sunt in populorum institutis aut legibus" (Cic, de Leg., i. 13); 
but the state, as the chiefest of human unions, is a sacred in- 
stitution, and deserves each man's faithful devotion, to serve 
where it is right, to improve where wrong. 

8. The state existing of necessity, and it being each man's 
natural society, it follows that each member singly owes some 
duties to each member collectively, and, of course, all mem- 
bers collectively have certain rights (and, consequently, duties) 
towards each man singly. Again, that as the individual stands 
higher than the state, he is free to leave it. And perhaps it 
may be as well observed here as in any other place, that emi- 
gration does not necessarily imply want of patriotism. Patri- 
otism not unfrequently causes us to emigrate. What nation 



» Luther on the Duties of the Subject to his Magistrates. 



ESSENCE OF THE STATE. i6i 

loved more ardently their native soil and state than the Greeks? 
What nation, at the same time, was ever more given to emi- 
gration than the Greeks ? They lighted indeed the sacred 
lamps which they took with them in the temple of their 
mother city; still, they emigrated. The Mahometans have 
compasses made which point to Mecca (of course, with ref- 
erence to one country only); there are many emigrants whose 
hearts resemble these compasses, and you would be unchari- 
table indeed were you to charge every emigrant, because he 
emigrates, with want of patriotism. On the other hand, as 
the state is infinitely above the individual, we measure not 
our attachment by a daily account and balance of profit and 
loss. The state is a society for weal and woe. " Cum bonis 
omnibus coire non modo salutis verum etiam periculi socie- 
tatem." Cic, pro C. Rabin, 7. 

9. The state does not make right ;^ it protects original 
rights, and, of course, in so doing, modifies their mutual oper- 
ation, and in order to protect them the state must publicly 
acknowledge, sanction them, limit them, or confer privileges. 
It is with right very much as with value. The agents of the 
state may place a stamp on precious metals, and make coin, 
but the state cannot make value. (See M'Culloch on Com- 
merce, and others.) So did the council, convened by Pope 
Julius IL to oppose the one assembled at Pisa, declare the 
necessity of the belief in the immortality of the soul. Star- 
tling as this procedure may be to us, on account of the state 
of things it reveals, still no one believes that the assembled 
prelates meant to make the soul immortal ; all they could 
mean was to declare the belief of the church.'^ The French 



* This the state would undoubtedly do, if we adopt the view of some earlier 
writers, e.g. Rutherforth's, according to whom (book ii. ch. i) right is nothing 
but lawfulness, that which the law permits. If so, a man can have no right 
except what the law sanctions ; and yet by far the fewest nations have positively 
enacted the principle that a man can do everything that is not prohibited, although 
nearly all acknowledge the principle. Where, then, does this right come from ? 
Where does this right of the lawmaker himself come from? 

« Raynald, | i. 



1 62 THE STATE. 

Convention went, and was perhaps obliged to go, still farther. 
They decreed their belief in a supreme being. 

XXXIV. We have arrived, then, at the following Important 
truths : 

1. The state exists of necessity, and is the natural state of 
man. 

2. The state Is a jural society. 

3. The state is a society of moral beings. 

4. The state does not absorb individuality, but exists for the 
better obtaining of the true ends of each individual, and of 
society collectively. 

5. The state, being a human society, jurally considered and 
organized, Is the society of societies ; a bond for weal and 
woe. 

6. The state does not make right, but is founded upon It. 

7. The state Is aboriginal with man; it is no voluntary as- 
sociation; no contrivance of art, or Invention of suffering; no 
company of shareholders ; no machine, no work of contract 
by Individuals who lived previously out of It ; no necessary 
evil, no ill of humanity which will be cured In time and by 
civilization ; no accidental thing, no Institution above and 
separate from society; no Instrument for one or a few; no 
effect of coercion, or force of the powerful over the weak ; no 
mystery founded on something beyond comprehension, or on 
an extra-human base ; the state Is a form and faculty of man- 
kind to lead the species towards greater perfection — it Is the 
glory of man.' 

XXXV. When It Is asserted that the state exists of neces- 
sity^ snd Is the natural state of man, It Is not pretended that 
the Idea of the state, such as I have represented it, has existed 



* Dahlmann, Politics, reduced to the basis and standard of Given Circum- 
stances, vol. i., Gottingen, 1835, in German. Mr. Dahlmann is one of the Got- 
tingen professors w^ho honorably protested against the abolition of the Hanoverian 
constitution by King Ernest (duke of Cumberland), and, in consequence, lost 
their respective chairs. 



CIVILIZATION INCREASES POWER. 163 

and been clearly acknowledged from the beginning. The 
history of the state is similar to that of all other ties and 
institutions founded in man's nature, and of which I have 
said already that their character becomes more distinctly de- 
veloped on their own essential ground, and that their operation 
consequently becomes more powerful with every advanced 
stage of civilization, which in other words only means, with 
every farther development of man's true nature. No states 
are so powerful in their action, within and without, as those 
of civilized nations. It is the same with property, marriage, 
the family, division of labor, exchange, intellectual intercourse, 
protection of person, public opinion. Nothing is more natu- 
ral to man than some sort of administration of justice; it 
begins with the father in the family, and man cannot possibly 
live without it. Yet every progress in civilization secures it 
more and more, notwithstanding the diminution of accom- 
panying physical force to the contrary. How weak and 
fragile are the theoretically absolute governments of the East! 
and where is the state more powerful than in England ? 
Where has it greater resources, where does every individual 
feel himself more identified with it, or rush more readily to 
its assistance when in danger ? A single battle may put an end 
to a whole vast absolute empire ; but a civilized empire, with 
a government found«ed on civil liberty, may lose ten battles, 
and still it exists. I do not, of course, mean by state the gov- 
ernment, and by government the executive — a very common 
confusion of ideas. I do not mean that with every progress 
of civilization the numerical strength of the standing army is 
increased, though this too has often been believed to constiti te 
the strength and sinew of states ; ^ or that the executive becomes 
more absolute ; I mean something far higher. I mean that the 
essential attributes of the state become more distinctly under- 
stood, affect more powerfully each individual, unite men into 
a more closely interlinked community, that it extends protec- 



* Even Algernon Sidney could say, "that is the best government which pio- 
vides best for war." Discourses, chap. ii. sect. 23. 



164 THE STATE. 

tion and receives stronger support, that vast, powerful public 
opinion joins it — in short, that the intensity of its action in a 
thousand different ways increases. Mr, Elphinstone, in the 
quoted work, page 338, says, " None of all these (Afghan 
istan) chiefs have authority equal to that of a constable in 
England." Yet theoretically their power is, in the main, in 
conformity to Asiatic notions of the authority of rulers. 

This progress is but slow ; sometimes even fearfully retro- 
grade movements take place. Ideas which we now cannot 
help connecting with the state, attributes which appear to us 
extremely simple, were not always clearly before the mind 
of the people. Thus, much time was requisite to distinguish 
between bare temporary expediency and true right and mo- 
rality. We are informed that with the ancient Egyptians those 
who intended to follow the profession of theft gave their 
names to the chief of the robbers. By this custom a person 
who had been robbed could always obtain his stolen goods 
after paying a quarter of their value, which was considered 
much better than to expect protection from the laws alone 
and lose the whole. Thieves who did not belong to the cor- 
poration were not suffered by the other incorporated rogues ; 
and the chief of the robbers was probably paid by govern- 
ment, and was "a man of integrity and honor." ^ Whatever 
advantage we might expect from an arrangement of this sort 
or a similar compromise with crime itself, we could not, would 
not dare resort to it. The injury to moral feeling and to the 
very conception of the state in the citizens would be infinitely 
greater than the advantage of recovering stolen propert}'. If 
we suppose that theft thus regulated would operate with us as 
it is represented to have done with the Egyptians, property, 
indeed, would thereby be better protected, but the general 
protection, the security in obtaining the highest ends of so 
ciety, would be incalculably injured. 



* Manners and Customs of the Ancient Egyptians, including their Private Life, 
Government, Laws, Arts, Manufactures, Religion, and Early History, etc., by 
J. G. Wilkinson, 3 vols. 8vo, London, 1838. 



THE STATE, THE STATE OF NATURE. 165 

XXXVI. If man, as was shown, arrived very early at the 
idea of property and could not live without it, he must equally 
soon have been led to the idea of the just. If every relation 
between the father and his child might be imagined as solely 
resting on authority, power, or affection, we cannot, at least, 
imagine two children of the same parents to exist long with- 
out giving necessary rise to the ideas of equality, of justice. 
Let one brother sit down upon a log, and the other claim the 
seat ; the ideas. Why ? it is not right ; have I not as good a 
right as thou hast ? must have struck the mind of the first. 
Yet the paternal authority in dealing out justice was still too 
much aided by the whole parental relation to allow man 
strictly to separate them. The father, the chief, the ruler, the 
priest, were united in one person ; the various attributes had 
not yet developed themselves as distinct from one another. 
This state of things continued even for some time after fami- 
lies had already increased into tribes. The patriarch ruled 
over the whole. A state existed, indeed ; for there was justice 
administered, and where justice is administered there are 
rights acknowledged, and where rights are acknowledged 
there is the state ; but it was the state in its incipient stage. 
Gradually the characteristics of the family and the state, of 
that which is fair and that which is just, showed themselves 
with greater clearness ; ^ though the development of the state 
was and continues to be affected by a variety of adventitious cir- 
cumstances, like everything else connected with mankind. The 
tree in blossom or with the ripe fruits is in no less natural a 
state than in winter when deprived of all foliage, nor is the 
plant in an unnatural state when yet unfolded in the germ. 
Nowhere do we see man without the state in some stage of its 
development, and Aristotle is right in saying, man is by nature 
a political animal ((pbati izohnxov ^ajov avd-pcjizoq). If part of the 
ties of the state are broken, the fragments will immediately 

' The Areopagites had to declare guilt or innocence, or the amount of punish- 
ment with reference to the whole life of the accused, (^sch, c. Tim., 113.) 
The English or American juryman, according to his oath, must decide upon the 
evidence as it shall be given, and according to nothing else. 



1 66 THE STATE. 

unite again ; and if men are thrown outside of the pale of a large 
society, they themselves must instantly again unite to obey 
some general rule, to have it insisted upon by some authority, 
to begin the state anew. The " regulators" in the farthest 
West, men who, for some reason or other, enjoy a degree of 
consideration, and take the law into their own hand, while the 
others tacitly or otherwise agree to it, form a remarkable in- 
stance of this inherent political nature of man.^ Men cannot 
possibly exist without law. The mutinous sailors, after having 
dispatched their captain, must elect another and obey him; 
the pirates who break with human society and declare them- 
selves out of its pale are bound to constitute forthwith a state 
of their own, that is, a society in which there are general 
rules, rules which will be enforced if not obeyed, rules on 
which the individual can insist if transgressed by another, 
because established for the jural relations among them, in 
order to maintain what they consider rights to do justice — a 
society in which there are superiors and inferiors, which ac- 
knowledges authority. The history of the buccaneers is in 
point. When all laws were defied in Germany, the Vehme 
Courts sprang up.^ When the planters of the colony of New 
Haven met on the 4th of June, 1639, "for the establishment 
of such civil order as might be most pleasing unto God," the 
first question propounded was not whether a civil government 
was necessary in the opinion of the assembled and previously 
entirely disunited planters, but at once, according to the spirit 
of the age, " Whether the Scriptures do hold forth a perfect 
rule for the direction and government of all men in all duties, 
as well in the government of families and commonwealths as 



* They are mentioned by Mr. Audubon in his Biography of American Birds. 
An article of great interest with regard to this subject, on Pony Clubs among the 
Indians, is to be found in the National Gazette (Philadelphia) of October 21, 
1833, copied from the New York American, 

2 Much light has been thrown upon this subject by some late publications of 
the documents of the Vehme processes in Germany. [See Von Schulte, Lehrb. 
d. Deutsch. Reichs- und Rechtsgesch., ed. 3, 1873, § i^^, and the authors there 
cited ; Sugenheim, Gesch. d. Deutsch. Volks, ii. 624-634.] 



THE STATE, THE STATE OF NATURE. 167 

in matters of the church."^ I do not know of a solitary in- 
stance in history when the question was asked, Is some sort 
of government or other necessary or not? except in some 
melancholy cases by frantic fanatics, who preached the advent 
of the millennium, on the one hand, or by the inquiring phi- 
losopher on the other, in order to prove its connection with 
all that is human in man. 

XXXVII. The members of the state do not stand to each 
other in the relation of members of one family, nor as mere 
individuals brought together for the sole purpose of protect- 
ing one another against bodily harm, nor for any temporary 
and selfish purpose. The state has far nobler objects to ob- 
tain, though these are included. Without peace, society can- 
not live, and protection against bodily harm is undoubtedly 
one of the first objects of the state. We have seen that man 
is destined to acquire and possess property, and that it forms 
one of the primary requisites of civilization. The state, there- 
fore, has vigorously to protect it. But there are more impor- 
tant objects yet to be obtained in the course of civilization ; 
and protection, as has been stated, includes more than the sole 
warding off of injury to my person or property. Ignorance 
and barbarity, for instance, are likewise to be warded off, not 
only for the indirect reason that, if not, they will produce 
insecurity, but on the positive ground that knowledge and 
education are necessary for man's civilization, and must be 
obtained by society jointly {e.g. by common school systems, 
universities), if they cannot be obtained by individual energy 
or voluntary association. The state has been compared to an 
insurance company, in which property forms the share each 
citizen holds. Sad indeed would be that state where this 
principle should be attempted to be acted out ; — attempted, 
I say, for it would be absolutely impossible ever to carry 



« The record of this very peculiar meeting is to be found in the Code of 1650, 
of Connecticut, etc., Hartford, 1825, p. 114, et seq. [and in the Records of the 
Colony and Plantation of New Haven, edited by C. J. Hoadly, State Librarian 
of Connecticut in 1857]. 



1 68 THE STATE. 

it through. It was a view common towards the end of the 
last century, and is maintained by some to this day, yet it is, 
even as a mere simile, radically wrong. For how is it that 
the state legislates also over those who have no property, and 
that they have a right to ask not only protection, but all the 
benefits guaranteed by human society organized into a state, 
that is, human society acknowledging certain authorities as 
the pronouncers and executors of the law ? How is it that 
no one has a right to withdraw from this insurance company 
and say, " I am my own insurer," in other words, " I renounce 
your protection, I can take better care of myself; give up, 
therefore, all claims you make on me ; do not consider me 
any longer amenable to your laws" ? According to this hol- 
low theory, men possessed of such enormous property as the 
marquis of Westminster, the duke of Buccleugh, the Port- 
lands and Bedfords, ought to have each a hundred votes at 
least in parliament. Whence, above all, do we derive the 
power of the state, which it undoubtedly has, and has always 
exercised, from time to time materially to interfere with prop- 
erty, to prune it, if the state exists only to protect it and has 
no higher aims ? The supposition that the state exists by a 
voluntary contract is open to similar objections, though there 
is some truth in the latter theory, but none whatever in the 
former. The state is, in principle, no association, but a 
society. 

The comparison of the state to an insurance company is 
one of the innumerable instances of men grasping at similes 
when they are unable to find out or to present the principle 
of the thing itself, forgetting the danger of building argu- 
ments on those parts of the simile which do not fit, as well as 
on the others, to which they necessarily expose themselves. 
Similes and metaphors are most dangerous in arguments on 
religion, sciences, and politics. They are serviceable by way 
of illustration, to drive more forcibly the pointed wedge of 
argument into a stubborn block, but always misleading if 
we argue upon them. Theology and politics offer melan- 
choly illustrations of these facts. Millions have died fot 



THE STATE NO INSURANCE COMPANY, 169 

similes. Years of debate are spent because people will not 
approach the naked principle, or cannot get rid of associa- 
tions deeply wrought into the mind by a simile which we 
have heard from early childhood. Equally dangerous, if not 
more so, is personification, and after the abstract or collective 
idea has been personified, the reasoning upon it, as if the two 
were one thing. I shall revert to this subject when speaking 
of the People. May I merely add here that the words " it is 
supposed," of constant occurrence in English political law, 
ought to be discarded, because they are apt to lead to falla- 
cies ? Who can forget all the fearful arguments of the crown 
lawyers and judges under the Stuarts, founded upon the sup- 
positions and political fictions of the English law ? Politics 
are matter of reality, of right, and have nothing to do with 
suppositions. Blackstone is full of them ; " the king is sup- 
posed to be ubiquitous P' after which we find arguments 
founded upon this assumption. The king may be supposed 
so, but he is not, nor can he be. All these fictions and inven- 
tions of apparent principles for facts, which we wish to justify, 
explain, or connect — for to this the fictions amount — savor 
strongly of the school philosophy at a stage when it was at 
once boldest and least worthy of imitation. 

XXXVIII. How a theory like that of the state's being a 
large insurance company had its origin, may easily be ex- 
plained. The most extravagant ideas of the origin as well as 
of the true character of the state had been started ; the state, 
the government, and finally the individual at the head of the 
government, were partly, at times entirely, confounded, A 
monarch (Louis XIV.) had declared, Letaty dest moi (/ am 
the state) ; and though he was at the time but a boy, yet he 
pronounced it in the parliament of Paris, and of course must 
have been told so to do by his advisers. Nearly everywhere 
on the European continent did government act on the princi- 
ple, whether avowed or not, that the monarch, with his army 
and civil officers, was the state ; nearl}^ everywhere was the 
odious interference principle, according to which government 



1^0 THE STATE, 

might interfere with all my affairs, however private, carried 
to most injurious length, and all the minor circles of the 
state, of the whole jural society, were so entirely deprived 
of a proper action of their own that a perfect absorption 
by the central and only power became the necessary conse- 
quence ; nearly everywhere on the continent of Europe had 
the individual been so wholly merged in the state, such as 
its character then was imagined to be, that it was natural, 
in the course which the human mind takes, before a truer 
view could be obtained, that politics should pass first through 
the other extreme, by which the state is construed in a nega- 
tive way, if I may express it thus, and according to which, as 
arn author has said, all the state has to do is " to look out that 
my neighbor does not pick my pockets or box my ears." 
The foundation of the state lies too deeply in the human soul, 
in man's whole nature, to be explained simply by selfishness. 
It is no accidental mass of atoms ; it is an organism. Observe 
a steamboat full of passengers, all collected for one purpose, 
to reach a certain point as soon as possible, all in the same 
condition, having paid their fare, and equally interested in the 
safety of the vessel. Besides these points, every passenger 
forms an isolated individual. Is this the picture of a state ? 
What a society do they form ! with what utter selfishness 
every one acts and struggles for himself! Is this a society ? 
an organized thing, with life and energy, with moral elasticity, 
with power, which can rest on close union alone ? with an 
elevating, a humanizing character ? Are there no other con- 
siderations than those of the protection of property and life, 
which unite us into a state ? Then how unwise to sacrifice 
either for liberty ! Then how absurdly did the Athenians act, 
when the Persians offered to them to live peaceably under 
their government, but they preferred to abandon property, 
city, all, and to expose their lives on board their vessels in the 
battle at Salamis ! Then let us celebrate the Thessalians, the 
Locrians and Boeotians, who willingly sent earth and water 
to the Persian monarch upon the call to submit, and blame 
the other Greeks, who, according to an account given by later 



THE STATE NO INSURANCE COMPANY, 



lyi 



authors, resolved to amerce In a tenth of their property the 
medising part of the race. Then we ought to consider all 
those most thrilling pages of Herodotus on the Persian wars 
as but a sad illustration of man's folly ; and the cautious and 
well-weighing Heeren is but to be pitied if he says, with refer- 
ence to that struggle, that whatever mean acts were mixed 
with the greatest, " yet in the whole compass of history we 
can find no series of events which deserves to be compared 
with the grand episode then exhibited ; and with all the ex- 
aggerations of the orators and poets, the feeling of pride with 
which the Greeks reflected on their achievements was just and 
well founded. A small country had withstood the attack of 
half a continent; it had not only saved the most valuable 
possessions which were at stake — its liberty, its independence 
— but it felt strong enough to continue the contest, and did 
not lay down its arms till it was able to prescribe the condi- 
tions of peace." (Political History of Ancient Greece, transl.. 
p. 126.) 



CHAPTER V. 

Legitimate Objects of the State. — Danger of intermeddling Legislation; Instanceik 
— Primordial Rights and Claims. — Physical Life and Health. — Law of Neces- 
sity. — Personal Liberty, — Right of Individuality; no Absolute Obedience 
possible. — Right of Share in the Protection of the State. — Jural Reciprocity. — 
Right to be judged by Laws, and Laws only. — Right of Communion or Utter- 
ance. — Liberty of the Press. — Right of Morality. — Immoral Laws, no Laws. 
— Right of Honor, Reputation. — Family.— Religion, Creed, Worship. — Right 
of Property, Acquisition, Exchange. — Right of Emigration. — Inalienable 
Rights. — State cannot take Revenge; the Crown cannot feel Wrath. — Polit- 
ical Absurdity of speaking of King's Anger or Nation's Revenge as Political 
Body. 

XXXIX. The truth with regard to what the state is, lies 
between two extremes. The one has been mentioned in the 
previous section ; the other is expressed by Aristotle, namely, 
that the state exists before the individual ; if we understand 
it in the way the ancients actually viewed the state. The 
state, according to them, was all and everything, the indi- 
vidual receiving his value from the state alone. The essen- 
tial difference between what the ancients understood the state 
to be and what they considered the essence of liberty on 
the one hand, and the modern views on the other, will be 
more fully treated hereafter. Aristotle was right, if he meant 
to say that man cannot exist without the state, that the state 
is not an optional thing, or an artificial contrivance, but that it 
exists by necessity as an effect and consequence of our nature, 
as language is not conventionally made, but exists between 
men as a necessary consequence of their physical and intellec- 
tual nature, that the necessity of the state lies in every indi- 
vidual, and that every one, therefore, finds already a state, in 
V/hatever stage of development it may be. The right of 
society to legislate — that is, the right existing somewhere of 
prescribing general and imperative rules — has, I believe, never 
been doubted, any more than the right of breathing in the in- 
172 



OBJECT OF THE STATE. jy^ 

dividual ; both flow from the same source — necessity accord- 
ing to our nature. They are conditions of our existence as 
human beings. We might live as brutes without the institution 
of the state, but for our existence as human beings the state 
is a conditio sine qua non ; and this absolute necessity consti- 
tutes the ground on which is founded what is called sover- 
eignty, that is, the self-sufficient power, which derives its 
vital energy from no other, is founded by no superior au- 
thority, but imparts it and extends over everything that is 
requisite in order to obtain the object of the state; which man 
has to obtain in and by society, in as far as it is founded on 
jural relations, i.e. on right, on terms of justice, or mutual 
obligations. Yet be it mentioned thus early, sovereignty 
means something entirely different from absolute power, 
unbounded power. 

XL. The state (or human society organized on and accord- 
ing to its jural relations) has for its legitimate objects all those 
things that are necessary or highly important for man, and 
which yet he — first, cannot obtain singly; secondly, ought 
not to obtain singly (because he exposes himself or his 
fellow-citizens by doing so to great danger, for instance, by 
redressing privately interferences with his rights); thirdly, 
will not do singly, because burdensome, disagreeable, etc., e.g. 
to keep roads in good order, or establish common schools). 
Thus, life is absolutely necessary for man, and if he cannot 
possibly obtain medical assistance, society is bound to fur- 
nish it. Public hospitals are not a mere matter of charity, 
tbey are a matter of right. That they may be abused, and 
easily abused, we know; we know, too, that their abuse in- 
terferes with some sacred interests of society, for instance, 
lively family interest. If the Greeks thought that the devel- 
opment of taste was essential to the whole development of 
man, and that individual means were insufficient to effect the 
necessary cultivation of the fine arts, the state was right in 
promoting them by public means. If the British people be- 
lieve that the love of the fine arts has the twofold salutary 



U4 



THE STATE. 



effect of softening the manners, of humanizing and aiding in 
bringing out what is human within us, and of elevating taste 
and thereby raising the standard of comfort, which again 
is of essential importance to national industry, then parlia- 
ment has a right to spend money for the improvement of the 
British Museum, and acts wisely in so doing, and the most 
scrupulous citizen must rejoice at the constantly increasing 
number of visitors of that interesting institution. That a 
museum ought not to be promoted at the expense of things 
more urgently important, is a matter of course. Political 
wisdom and honesty must decide in practice ; and practice in 
political matters is attended with the same difficulties as in 
any other sphere, because in practice various interests clash, 
and we must choose between them. If society be convinced 
that institutions of deep learning, universities, are of absorb- 
ing importance to society, because science must always be 
far in advance of practice, and because the cultivation of the 
sciences for their own sake, and not with a confined view of 
immediate practical application, raises the standard of knowl- 
edge in general, and is a great blessing to a community, 
and if the state be convinced that private means must ever be 
insufficient for the erection of a university and the collection 
of large libraries, museums, etc., or if experience have shown 
that private exertion will not be directed to the foundation of 
a university, then the state has precisely the same right and 
the same obligation to found a university as it has to aid in 
the foundation of common schools, or hospitals, courts, pilots, 
or armies. 

Everything in the state must be founded on justice, and 
justice rests on generality and equality. The state, therefore, 
has no right to promote the private interests of one and not 
of the other. It promotes my interests if it assists me in 
getting my debts paid, but it must do the same for all others. 
It promotes private interest if it gives a pension to the widow 
of a soldier, but it is done on the ground that society owes 
her a debt, or that it is good for society thus to encourage 
soldiers. If the state gives money to a traveller into distant 



OBJECT OF THE STATE. 175 

regions, or to study the arts in Rome, it does this because the 
public is believed to benefit by it, directly or indirectly, but 
the money is not given to the private individual as such. 
Though public gifts of this nature, pensions and the like, have 
frequently been bestowed in a shameless manner upon Somer- 
sets and Buckinghams, it was generally at least pretended 
that it was done for some public good, to reward loyalty, 
surround the throne with splendor, etc. The riches publicly 
lavished by a Louis XV. or Charles II. upon dishonorable 
characters make an exception ; so does their age. I do not 
know that what is lawful for the state to do, and how it ought 
to be done, has ever been more lucidly expressed than in the 
following passage of Isidorus of Seville (Orig., lib. v. c. 22), 
in which the pleonasms are more apparent than real : " Erit 
lex honesta, justa, possibilis, secundum naturam, secundum 
consuetudinem patriae, loco temporique conveniens, necessaria, 
utilis, manifesta quoque, ne aliquid per obscuritatem in cap- 
tione contineat, nuUo privato commodo sed pro communi 
utilitate civium scripta." 

XLI. It is evident that, according to the principles laid 
down, there is no theoretical difficulty respecting the subjects 
which require the action of the state or not, and those which 
the state ought never to touch. But in practice there is much 
difficulty, because it is not easy to decide what is of sufficient 
general interest to allow of, and what of sufficient general 
importance to call for, public action. The choice of the sub- 
jects with which the state ought to interfere must essentially 
depend upon the state of civilization of the society, and the 
difference, as to knowledge, between the authorities of the 
state and the ruled. The general principle undoubtedly is, 
interfere as little as possible with the private affairs of the 
individual. This is clear from the object of the state. The 
intermeddling of the state with private affairs is unjust, bur- 
densome, and dangerous, requires enormous sums, and fre- 
quently springs from other motives than a wish to be useful 
to those whose affairs are intermeddled with. If society have 



176 



THE STATE. 



a fair start in civilization, no principle can be sounder than to 
leave as much to private exertion as the public weal, comfort, 
and morality allow. Individual industry, private combination, 
and associations, which are conscious that they depend upon 
themselves alone, are possessed of a vigor, keenness, and 
detailed industry that cannot be expected of the action of the 
state if applied to industry or other exertions partly connected 
with industry. The American packets to Liverpool and Havre 
ply more swiftly than, or at least as swiftly as, any govern- 
ment packet; but it must not be forgotten that this requires 
a general free action. Nothing is more common than that 
single branches are badly conducted by the people in coun- 
tries in which government has in general annihilated the 
independent exertion and native individual vigor. A similar 
principle applies to the affairs of government matters them- 
selves, as will be seen in the sequel. On the other hand, the 
state, that is, its public authorities have frequently means of 
obtaining correcter, wider views, ampler and more detailed 
knowledge, in short, official information unattainable by the 
individual, and can command the aid of better qualified per- 
sons, so that interfering becomes just, because demanded by 
public interest. Experience alone shows in practice which is 
the true limit and mean, provided only that the first principles 
of the state, of right, are always kept in view. The task of a 
Peter the Great of Russia, to unite and raise a barbarous 
nation, is very different from the problem to be solved in a 
country like England. Nothing can be more preposterous 
than a police interference with the cooking of the people; yet 
in times of a devastating plague no community would hesitate 
to interfere with the choice of food, if such a measure were 
considered essential to public health. In general, it may be 
said that views respecting this subject are fast becoming more 
correct. During the latter part of the last century and the 
beginning of the present, the more active governments on the 
continent of Europe carried the intermeddling principle to 
such an extent that no affair, however private, seemed to be 
considered as not belonging to police inspection. It has been 



PRIMORDIAL RIGHTS. 



177 



found, however, even where the people did not insist upon the 
contrary, that this course leads to most calamitous and useless 
results. Yet this mistaken notion of the duties or rights of 
the state is met with also in earlier periods than the one men- 
tioned.^ It is necessary to have seen nations who have been 
forced for centuries to submit to constant and minute police 
interference, in order to have any conception of the degree to 
which manly action, self-dependence, resoluteness, and invent- 
iveness of proper means can be eradicated from a whole com- 
munity. On this account, systematic interference weakens 
governments, instead of strengthening them ; for in times of 
danger, when popular energy is necessary, when " every man 
must do his duty," or the state is lost, men, having forgotten 
how to act, look listlessly to the government, not to them- 
selves. The victories of Napoleon over the many states east 
and south of France were in a great measure owing to this 
natural course of things. 

XLII. From the elementary truths which have been found, 
we shall be enabled to draw conclusions of momentous im- 
portance both with regard to the individual members of t»he 
state, and to the state collectively. These truths have been 
more distinctly developed in the course of civilization ; the 
more essential their importance, the more steadily and dis- 
tinctly have they gradually unfolded themselves, and are con- 
sequently to be regarded as natural to man and the state. 
The following remarks will contain some amplifications of 
what has been stated in sect, xxxiv. and previous sections. 

The writers on natural law speak of several original rights; 
that is, rights which I possess as a human being, quatenus 
homo sum, and which are contradistinguished to acquired rights. 
The former are likewise called personal rights, because in- 



« Christian II. of Denmark, who lived in the beginning of the sixteenth cen- 
tury, prescribed, by heavy penalty, not only how the street and entry of houses 
ought to be swept, but when and how benches and tables in the houses were to 
be scoured. Raumer's History of Europe since the Fifteenth Century, vol. ii. 
^. 114, where the proper authorities are given. 

2 



i;8 THE STATE. 

herent in every individual, i.e. human individual. Properly, 
there is but one original or primordial right, that of my per- 
sonality, the right I have expressed already by way of axiom : 
" I am a man, therefore I have a right to be a man." By my 
existence I prove my imprescriptible right to my existence as 
man, physical, intellectual, moral — my right that humanity in 
me be not annihilated, and, inasmuch as freedom of action 
constitutes one of the chief ingredients of humanity, that I 
be allowed to do all that does not interfere with the same 
right in others. 

The truths we have so far ascertained are : 

Men are individuals, and must forever remain such. 

Men are moral beings, each one for himself. 

Men must live in society. 

Men, as free agents, become, in contact with others, jural 
beings (beings who have rights towards others, and towards 
whom others have rights, that is, who have obligations). 

The state is a jural society. 

From these positions we derive the following conclusions : 

I. The physical life of the individual is the first of all con- 
ditions of my existence as man. The state, therefore, cannot 
take it for the benefit of others, because it would violate the 
first of my rights, — that of living, — without being able to 
^ive me an equivalent, unless the state have acquired a right 
over my life on the specific ground of my having forfeited it.' 



* The question of capital punishment cannot be developed here ; it may suffice 
to say that, according to the true principles of the punitory power in the state — 
*ee Lieber's Letter to the President of the Philadelphia Prison Society on Sub- 
jects of Penal Law, Phila., 1838 — no doubt can be entertained as to the abstract 



PRIMORDIAL RIGHTS. 



179 



The Spartans murdered at times the helots. "They kill of 
the helots as many as is necessary."' The extrajudicial kill- 
ing of a person may become absolutely necessary in a specific 
case of self-preservation, as, for instance, it seems to have been 
necessary on board the wrecked French vessel Medusa, which 
I shall have to mention hereafter ; but when a state institution 
regularly requires this, it shows thereby alone that it ceases 
to be the state, the protecting society, and, of course, that all 
mutual obligations are at an end. The majority have not the 
right to kill the minority, as happened in the case of the 
" Corcyrean Sedition," related by Thucydides, for to this 
amounts in my opinion that massacre — a prototype to the 
massacre of St. Bartholomew. Richelieu, who will be allowed 
to have possessed high notions of the king's power, said, 
" The king is not master of life and death, and cannot com- 
mand duels to be fought." (Richelieu, Memoires, iii. 41 ; Po- 
litical Testament, i. 190.) 

Closely connected with this right is the claim of protection 
for my body, limbs, and health. Many considerations of high 
importance must give way if clashing with the sanitary in- 
terests of the members of the community. Every other right 
is to give way if life and health are in question, and so high 
has it been considered by the civil law, that to save my life, 
if under absolute necessity, every right of others may be dis- 
regarded {^jus necessitatis ; necessitas non habet legem). If a 



right in the state to punish capitally for certain crimes. The question only can 
turn upon these points : is it requisite or expedient, will its continuance in the 
penal code aid in punishing criine or protect against it, and can man establish n 
mode of ascertaining the truth, i.e. of trial, on which he may so far depend as to 
take away, upon its result, the life of another and to cut off, on the discovery of 
a wrong verdict, not only the possibility of restoring him to his former condition, 
but that also of acknowledging to him his error and arresting his punishment? 
This then would lead to an inquiry into the various modes of penal trials and 
their actual operation. It belongs likewise to the question of expediency whether 
the punishment substituted for death can, according to existing circumstances 
ever more powerful than professions and wishes, be faithfully maintained. 

» Heraclides Pont., Fragm., ed. C. Muller, Frag. Hist. Gr., ii. p. 310. Compare 
Vlutarch, Lycurgus, c. 28, and also Thucyd., iv. 80. 



l8o THE STATE. 

man be in actual and palpable danger of starvation, he may 
make use of the property of any one else. Necessity, as it is 
expressed, does not establish a right, but annihilates account- 
ability. (See C. A. Tittmann, Manual of the Science of Penal 
Law, in German, vol. i. § 89.) The English common law 
does not acknowledge absolute necessity as a ground of non- 
accountability, except in cases of self-defence, though the 
rectifying principle in the institution of the jury would not 
allow a man to be punished for having eaten what did not 
belong to him, in a case of starvation. 

XLIII. 2. My personal liberty is a condition of my free 
agency as a member of society — is an ingredient of my hu- 
manity. The prisoner may be free in mind, freer than any 
one not in chains. Who was the freer of the two, the old, mild 
Barneveldt in prison, sentenced to death, and yet incapable of 
saying one word by way of petitioning for pardon, because 
he would not become a hypocrite and outwardly acknowledge 
guilt, even in the slightest degree, or Maurice of Nassau, who 
insisted upon it, and had him executed ? Yet, as a being 
who has to obtain certain objects in this world and in society 
with others, I must be personally free. The state cannot cir- 
cumscribe my personal liberty in any way, unless I have 
forfeited it.^ The state exists to protect it, not to interfere 
with it. 

XLIV. 3. The fact that man cannot by possibility divest 
himself of his individuality and moral character shows that 
the state cannot absorb the Individual, since the state remains 
forever a society, that is, a union of individuals : hence — 

a. Absolute obedience of any one to any other person is 
impossible ; for it would absorb individuality and annihilate 
the moral character, that is, individual moral value (requiring 



* Respecting imprisonment, and how the state is bound to protect even the 
convict, see the above-quoted Letter to the President of the Philadelphia Prison 
Society. 



PRIMORDIAL RIGHTS. l8l 

free agency) and responsibility. More of this under the head 
of Obedience to the Laws. 

b. Absolute power, either in society collectively or any 
individual, is inadmissible ; for absolute power presupposes (is 
only the antithesis to) absolute obedience. Nor can an indi- 
vidual, clothed with whatever authority, cease thereby to be 
a moral individual, with all his rights and responsibilities. 
The individual personating the crown cannot possibly divest 
himself of individuality, and consequently remains in a jural 
relation to other individuals. If a monarch shoots his sub- 
jects for pleasure — and these cases have happened — does he 
do it as monarch, or has the individual no right to protect 
himself and repel the aggressor or render him offenceless ? 
This subject will occupy us more under the head of Sover- 
eignty. Suffice it here to say, the monarch cannot cease to 
be an individual and as such to stand in jural relations to 
other individuals. Nor has ever any other view been taken 
in practice ; for whenever a monarch came to be considered a 
common invader of primordial right — a general nuisance — 
the people have made him innoxious. 

XLV. 4. Since I am an individual with a moral character, 
and stand therefore in jural relations to other beings of the 
same class, it is clear that reciprocity exists between us, for 
all right, in its very meaning, involves reciprocity. It cannot 
be right without this. The state, founded on these relations, 
has the same character, or, in other words, there are jural 
relations between me individually and the state collectively, 
there is the relation of reciprocity between the two. The 
moment that any particular state were actually to treat me as 
merely existing for it, demanding only and giving nothing, or 
demanding without giving the equivalent, that moment the 
bond is dissolved and the state does not any longer exist for 
me — it is not my state. 

I believe it is this idea which forms the pith of Chief-Justice 
Markham's remark to Edward IV., that " the king cannot 
arrest a man upon suspicion of felony or treason, as any of 



1 82 THE STATE, 

his subjects may; because if he should wrong a man by such 
arrest, he can have no remedy against him." ^ 

XLVI. 5. My standing in jural relations to the state, my 
obligations, rights, and penalties, must be expressed and 
judged of by laws, for laws are the organs of the state. Rights 
imply that he who has them can insist upon them ; he ought 
to have the power, or some one else for him, to enforce them. 
Hence they cannot depend upon personal views and feelings 
and affections ; they must be clearly defined, must not lie in 
an indefinite state in the breast of some one; or, as in German 
terminology it would be properly expressed, rights are ob- 
jective, not subjective. The connection of the individual with 
the state, then, his obligations and responsibilities, are to be 
judged by laws. Each member of the state has a right to be 
judged by laws. It is not always possible that laws be abso- 
lutely or mathematically definite ; it cannot be (see Political 
Hermeneutics). An officer is sentenced for "ungentlemanlike 
behavior," and justly; but what is gentlemanlike behavior? 
Still, he is judged by laws. He who demands unlawful 
things, be he who he may, does it as a private individual, 
at his own peril, for the state has no other means of speak- 
ing but through the law or lawful authority, i.e. authority 
keeping within the law ; all beyond it is private. " When the 
' commissioners' used to send pursuivants to ransack houses, 
and an individual defended his rights by killing the officer who 
attempted to enter his house by virtue of a warrant from the 
commissioners, the ordinary judges declared that he was not 
liable to prosecution, and dismissed him from the bar.** 
(Simpson's Case, before the judges of assize in Northampton- 
shire, 42d Eliz., 4th Inst, 332. See, for more authorities, Bro- 
die, i. p. 198. See also Hallam, Const. Hist of England, vol. 
i. p. 527, et seq.) It was no excuse for Strafford, or the minis- 
ters of Charles X. of France, for their illegal acts, that the king 
personally had ordered it thus. So far is this true principle 



» Quoted in Hallam, Constitutional History of England, vol. i. p. 526. 



PRIMORDIAL RIGHTS. 



183 



carried, that an individual, upon whom a constable officially 
called in the street to assist him in the arrest of a person, 
was held answerable when it was found that the constable had 
no right to make the arrest. It lately happened in the city 
of New York. Sacred as the principle is, the application of 
it in this particular case exacts an impossibility. For a citi- 
zen cannot, when thus called upon, ascertain whether the 
constable is performing a lawful act. But a law ought to be 
possible ; it is one of its very first requisites. 

XLVII. 6. Man cannot be man without communion or 
utterance, be this by sound or sign, and be this sign transitory 
(as the sign made by the deaf and dumb) or enduring 
(by writing). We cannot exist physically, intellectually, and 
morally, without utterance; our whole existence as human 
beings depends upon it. We cannot imagine a human so- 
ciety consisting of beings deaf, dumb, and blind, as the one 
of whom Mr. Stuart, the British philosopher, gave an account, 
and as there is now one in the institution for the blind at 
Hartford, Connecticut (named Julia Brace). Mankind could 
never have advanced, had not the members of the existing 
generations held free converse among themselves, and had 
not, in the course of time, one generation learned to commune 
with the next, or people separated by space learned to ex- 
change their ideas. The more the earth became peopled, the 
more the stage of action, knowledge, and intercourse became 
extended, and the more the collection of facts and reasoning 
upon them required communications too extensive for mere 
oral converse, the more writing became necessary, and the 
more knowledge of what has been written became indispen- 
sable. Still, writing is nothing but utterance and converse, 
although of the utmost importance to mankind, because with- 
out it man could never have shaken off the thraldom of dis- 
torting tradition; knowledge could not have accumulated in 
any high degree, it could not have descended by way of inherit- 
ance from one to the other. Interfering with writing, there- 
fore, is interfering with thought, and, according to a German 



1 84 THE STATE. 

homely but significant proverb, " thoughts are duty-free.* 
Utterance is nothing more than the manifestation of thought 
or feeling. And is the mind not absolutely free of the state ? 
Where is the jural relation in which it stands to o-thers, with- 
out which the state cannot touch it? Hence the inadmissi- 
bility of any authority interfering with scientific and religious 
utterances, if no right of others is infringed. The state must 
not interfere with thought. No authority, man, or body has 
a right to disturb my communion with my fellow-men, by what- 
ever means of utterance I choose. To establish censorship 
amounts to nothing less than to ordain that no man shall 
leave his house, or give to any one to eat, or offer anything for 
exchange, if he has not previously obtained permission to do 
so on proving that he has no criminal intention. Censorship 
disturbs me most essentially in my jural relations and the 
first foundation of them, namely, that I must be allowed to 
do what harms no one, and be interfered with only when I 
do harm. Locomotion is certainly a primordial right, with- 
out which mankind could not exist ; yet if I, for one, were 
forced to choose between locomotion and converse, I would 
prefer the latter, for I might contrive to live penned up in a 
room more easily than without free communion with other 
minds. The state has no right either to interfere with what I 
shall read (for instance, by establishing authorities on the fron- 
tiers to inspect all imported books, whether they are fit to enter 
or not, as is the case on the Austrian frontier), or with what I 
shall say by way of writing to others ; but it has the bounden 
duty to protect this my primordial right, and wait till I abuse 
it, as it does not tie my arms, to prevent theft or murder, but 
waits until the use of these limbs has been abused. Liberty of 
the press is in principle as proper or improper a term as lib- 
erty of breathing, talking, walking, thinking, working, would 
be, and its being guaranteed in the fundamental laws of 
nations is explainable only by the continued efforts of power 
to restrain it, which are more frequently successful because 
they do not interfere with the physical interest of man, nor 
directly with the great number ; yet it is of equally essential 



PRIMORDIAL RIGHTS. 1 85 

importance, because man is man by his intellect more than 
by his body, and it affects equally, though not so directly, 
the welfare of the whole man. All nations, therefore, ad- 
\''anced in civil liberty, have returned to it ; it is a return^ and 
not the establishing of a new thing, as has been shown, for 
the interference with it is an abridgment of the right of 
communion. 

It is not said that utterance, though necessary for me in my 
character as man, may not be regulated or suspended. Though 
I have as man the indisputable right of utterance which no 
power on earth has a right to wrest from me, any more than 
to cut off my arms, yet I have not the right to use it every- 
where and on all occasions. So does my right of locomotion 
not entitle me to go where I choose, into my neighbor's field, 
closet, etc. I am not allowed to speak loud in a church, in a 
deliberative assembly. When the Dutch Colonel Haraugiere, 
in 1590, hid himself with his seventy men on board the peat- 
vessel, to be dragged into the fortress of Breda, occupied by 
the Spaniards, he had a right to declare that a single word 
uttered should be instantly punished with death. The same 
order, if I remember right, is said to have been given by 
General Wayne when he marched to capture Stony Point. It 
is done not unfrequently. So may utterance by writing be 
suspended or limited ; for instance, who would deny the com- 
mandant of a besieged fortress this right, if he was afraid of 
a mutinous spirit ? The same may take place in a rebellious 
province, and under certain circumstances in a whole country 
during a time of war. But all these are exceptions, as by way 
of exception the police may examine my rooms, whether I 
ventilate them properly, for instance, in times of a general 
infection. 

XLVIII. 7. As my intellect has its primordial right, so has 
my moral character. The state has to protect virtue : hence 
all immoral laws are ipso facto invalid, be they customary or 
not ; the state or any authority cannot require an immoral act 
or permit a crime ; and each one has a right to protect his 



1 86 THE STATE. 

morality. And if it had been the custom of centuries for 
feudal lords to claim th.Q jus primes noctis (and what unright- 
eousness has not been termed at times a right?) or marchetta 
mulierum, any bride, or her father, brother, or husband for 
her, had the undoubted right to defend her virtue even at the 
risk of the life of the offender. Man's virtue is his very self, 
and the state is there to protect it, all customs, laws and 
statutes, commands and injunctions, however old or from 
whatever authority or however long acquiesced in, to the 
contrary; for the primordial rights reappear with each human 
being q2ia man alone, and not by way of charter, grant, or 
specific relation to the state, in all their native power and im- 
portance. It may not be expedient at times to insist on them. 
A husband whose bride was thus claimed might think that 
resistance would inevitably lead to his death and a consequent 
still greater exposure of his bride. This is for him to calcu- 
late; I speak of right only.' (See the highly immoral laws 
in Blount's Fragmenta Antiquitatis, or Antient Tenures of 
Land, new edition, by Joseph Beckwith, York, 1784, page 124, 
and other passages.) Philip 11. could not rightfully authorize 
any person to murder the Prince of Orange, nor could Charles 
II. authorize the assassination of Cromwell. No king can 
order any person to murder another, as Philip ordered Perez 
to murder Escovedo without process, on account of weighty 
reasons respecting himself (the king) and the crown, and well- 
proved facts. Napoleon could not order courts-martial to find 
persons guilty, as he has been charged with doing. 



* * The following interesting case is copied from Roberts, Life of the Duke of 
Monmouth, ii. %%, who copies from Chilton Priory : ** While Lord Feversham was 
entertaining himself with executing the prisoners [after the battle of Sedge- 
moor], — for instance, turning so many off at each health, — some officers went to 
Weston. One entered the family house of the Bridges and offered the grossest 
insult to the lady of the house in the presence of her family. Her daughter 
Mary, between eleven and twelve years old, drew the officer's sword and stabbed 
him dead. Mary was tried by a court-martial ordered by Colonel Kirke, — a 
monster himself, — and was not only acquitted, but received the sword, with the 
injunction that it should descend to the Mary Bridgeses in the family. It is still 
in existence, now owned by Mary Bridges of Bishop's Hill," etc. 



PRIMORDIAL RIGHTS. 1 8/ 

XLIX. 8 As a moral being, obliged by nature to live in 
society, every one has a right of honor or reputation, that is, 
the acknowledgment of his worth as a man and citizen must 
be protected, for upon it his existence, and whole relation to 
society, to which he has a primordial claim, depend. The 
worth of an individual may be strictly moral (as man), polit- 
ical (as citizen), or consist in his capacity or in his general 
fitness for social intercourse. The state therefore has the 
duty, because each one has a natural claim to it, to protect 
the acknowledgment of each one's human and civil worth by 
the omission of all actions which may convey the declaration 
that the individual in question is unworthy of esteem as a 
man or citizen. (Feuerbach, Manual of Penal Law, § 271.) 
As, however, free utterance is an equally important right, and 
as society and consequently each individual has the greatest 
interest in free discussion, without which no advance in civili- 
zation is possible, it is exceedingly difficult to ascertain the 
precise limits between the two, and various nations have of 
course differed very materially upon this point The follow- 
ing are some general rules : a. The less a charge against the 
honor or reputation of an individual carries with it the pos- 
sible remedy, the more does the individual stand in need of 
protection against it. All slander belongs to this class, be- 
cause it is against the private character of a person, and it 
lies in the n-ature of things that publicity cannot prove the 
contrary. A woman's chastity is her honor ; attacks against it 
imperatively require protection ; but if the opposition charge 
a minister with selfish, even traitorous, designs, in these gen- 
eral terms, he may leave it safely to the publicity of his 
actions to prove the contrary, b. If the state takes away the 
means by which otherwise an individual would repel charges 
against his honor, it is the more bound to protect: for instance, 
it ought to punish the utterance of such epithets as are con- 
sidered dishonorable by the society, called injuria in the 
European continental law. The English law acknowledges 
this necessity but in a very limited degree. The Roman law 
distinctly protects the civil honor or dignity as such. The 



l88 THE STATE. 

jurist Callistratus defines the cxistiinatio as being stattis illcei^cR 
dignitatis^ legibiis ac monbus comprobatus. (Theodore Marezoll 
on Civil Plonor, in the German, Giessen, 1824.) c. The more 
an attack upon a man is directed against his capacity, skill, or 
performance of duty as the means of maintaining himself or 
acquiring property, the more it requires the action of the 
state. This is perhaps chiefly on the ground that the state 
shall protect my property and myself in the process of ac- 
quiring it. Yet the previous rule holds, that if the charge 
carries its possible remedy with it, it does not so much, if at 
all, require public action. If a person charges a physician 
with being a quack, it is a serious attack ; but if a reviewer 
says that a physician, in the reviewed book, has shown him- 
self a quack, and gives the facts by which he thinks to sup- 
port his charge, the same necessity does not exist. A professor 
of a university depends for support upon his capacity ; but if 
a person says he knows no more than his freshmen, he has 
ample means of proving the contrary, d. The more definite 
the charge, and the more it implies a crime or gross im- 
morality, the more it requires to be repressed. It is a very 
serious charge against a whole cabinet of the English crown 
that all the members are " shabby, silly, truckling, and fo- 
menting revolt," as thousands of times the Melbourne admin- 
istration were called: but what is "shabby, silly?'* As to 
fomenting revolt, their conduct is public, let them abide by it. 
But when Mr. O'Connell publicly charged the Tory commit- 
tees of the commons with *' foul perjury," they were right to 
take up the matter, if they felt a clear conscience. Had he 
stated at once why he charged them so, the case would not 
have been so urgent, according to the rule given as the first* 
e. Charges which interfere with the right of free social inter- 
course require public action. If a person say of another that 
he is afiflicted with a malady which renders him unfit for con- 
tact, it is doubtless most serious slander. 



* See, however, Mr. O'Connell's speech, after having been reprimanded by the 
Speaker, according to a vote of the house, on February 28, 1838. 



PRIMORDIAL RIGHTS. 1 89 

L. 9. We have seen how important an element of all that 
i<i human the family is, and a man has a right to be protected 
and not interfered with in his sacred family relations. Who is 
destined by nature to be the protector, cherisher, and foster- 
ing guardian over the body, mind, and virtue of children, if 
not the parents ? A Greek merchant told me, during my 
sojourn in Greece, that Ali Pacha, of Janina, sent once for his 
daughter, " because he had seen her on a ride, and she had 
pleased him," — of course that she was to be installed in his 
seraglio, and, as was the custom, to be married after some 
years to one of his menials. The father would have had the 
undoubted right to defend his daughter in any way whatso- 
ever ; the question could only be as to expediency. If the 
authorities forcibly carry away children from their parents to 
educate them in some specific religion, and on no ground of 
unfitness of the parents for their important task, they have 
the right to defend their offspring by any means whatsoever, 
though they may abstain from using it, in order not to ex- 
pose the life of the children, or their own, as necessary for the 
support of their children. 

LI. 10. Theodoric writes to the Roman senate, "religionem 
imperare non possumus, quia nemo cogitur ut credat invitus." 
If religion means all that appertains to man's relation to God, 
it is evident that as it is not an individual relation to any 
other human individual, it cannot, in its very essence, ever 
become a matter of the state, because the state has to do 
with jural relations only, and these must exist between man 
and man ; there is no other relation of right imaginable. 
(Property, a relation between an individual and a thing, be- 
comes a matter of right, a jural relation only, inasmuch as 
others are excluded from that property ; it signifies therefore 
again a relation between two individuals.) The stale cannot, 
even were it to try, seize upon religion. Properly speaking, 
therefore, liberty of conscience has no meaning; the state 
cannot reach it. We might as well say liberty of taste. How 
can the state reach my taste ? Unfortunately, however, the 



90 



THE STATE. 



term has acquired but too definite a meaning. Facts and 
outward actions are the only things for which the state has 
an organ ; how, then, can it approach the thoughts and feel- 
ings ? Hallam (note to page 308, vol. i.) speaks of the " false 
and mischievous position of Hooker," whom, however, he 
justly values for his writings, "that the church and common- 
wealth are but different denominations of the same society." 

It is otherwise with the publicly professed creeds, modes 
of worship, and churches, that is, religious societies of the 
same doctrine, discipline, and government. These are tan- 
gible by the state ; they can claim protection if innocuous, or 
may be interfered with if they interfere with the jural rela- 
tions of others — for instance, if they should palpably promote 
immorality. If the English thought it right to acknowledge 
Elizabeth as their queen, they were right to enact laws 
against public Roman Catholic worship and the public pro- 
fession of its creed ; not because it was Roman Catholic re- 
ligion — it is detestable and criminal for the state to interfere 
with religion as religion — but on strictly civil grounds ; be- 
cause the pope had excommunicated the queen, had called 
upon the Catholic princes to conquer her lands, and had ab- 
solved the English from their allegiance ; because the Cath- 
olics were known to acknowledge him as their spiritual chief 
and consider Mary Stuart as lawful queen of England; be- 
cause it was the age when assassinations on religious grounds 
were extolled, the murderers of Orange, Henry III., and 
Henry IV. were praised and publicly compared to characters 
of the Old Testament ; because fearful slaughters had been 
perpetrated, and a renewed and most vigorous reaction in 
favor of Catholicism had taken place all over Europe. (See, 
for the last remark, Ranke's excellent work, The Popes, their 
Church and State, books v., vi., vii.) I do not say by any 
means that the laws were good in detail, nor can we justify 
persecution for Catholicism, for this implies that it is for 
religion and not for infringed rights. It was wrong, there- 
fore, to put men on their oaths in order to find out whethei 
they were or were not Catholics, because merely believ- 



PRIMORDIAL RIGHTS, 191 

ing one dogma or the other is not a thing tangible by the 
state. 

The principle which the Catholics, and, after them, some 
early Protestants, have professed, that the church has nothing 
to do with the heretic except to excommunicate him, and 
to hand him over to the secular authority, which may punish 
him if it chooses, was right on the side of the church. But 
if so, whence does the secular authority derive the right 
to punish the heretic qua heretic ? As such he has been 
already excommunicated. We all know how hypocritically 
this principle was acted out ! History weeps over the slaugh- 
tered millions, the vast multitudes of homeless exiles, which 
she has had to record against Catholic and Protestant. When- 
ever the state has felt itself obliged, and has had the power, to 
act upon religion (and not on worship, or church matters, in 
as far as they can become matters of jural relations), misery 
has been the consequence. Philip II. and the people of Spain 
in general always considered the crown of Spain as not purely 
political, but as possessing a strong religious element. He was 
the propagator of Catholic faith in foreign regions, its support 
or the extirpator of heresy in Europe ; and what has been the 
consequence ? The Netherlands were drenched with blood 
for years and years ; murder and rapine ruled ; Spain, where 
many were inclined towards Protestantism,^ was crippled in 
all her energy, mental and industrial, by the Inquisition, 
which degraded a noble nation to such depth that it seems it 
can be roused but by one solitary agent, religious fanaticism ; 
with its population diminished, frankness of character gone, 
energy enervated, knowledge oppressed, morality lowered, 
and the nation unfitted, from mere exhaustion, not from 



* The Venetian ambassador in Spain — and the Venetian ambassadors formed 
at that time a class of the shrewdest observers and most faithful reporters to their 
government — writes home, under date of August 25, 1562, " I assure your high- 
ness, no religious movement on a large scale would be desirable for this country: 
there are many who long for a change of religion." This, and extracts of other 
reports, in Ranke, as above, vol. ii. p. 21. The Inquisition, therefore, became 
moi-e active. There was much Protestantism in the south of France. 



192 THE STATE. 

tumultuous ebullitions of strength, to settle into peace ; her 
colonies, like the mother country, without character or 
energy, knowledge or manliness, turning in weakness from 
one change to another. It was a melancholy time indeed ! 
Everything seemed to turn upon religion ; everywhere were 
dogmas taken for religion ; everywhere busy hatred and dis- 
cord, bitter controversy, uncharitable accusations, and wilful 
misunderstanding; religious and civil wars everywhere. A 
time when people thought they had obtained somewhat of re- 
ligious liberty because the peace of religion, between the Ger- 
man Catholics and Protestants, in 1555, guaranteed to all who 
should differ in religion from the prince of the respective 
country protection against personal persecution, and the right 
to emigrate after selling their property (in which, however, 
they were often exceedingly oppressed) ! A period when the 
government of Geneva burnt Servetus for not entertaining the 
common opinion respecting the Trinity, prompted in doing so 
by Calvin, and approved of by nearly the whole Swiss Prot- 
estant clergy ; when even a Melanchthon, known for the mild- 
ness of his character, expressed his assent to this evil deed 
(see Calv. Epist, ed. AmsteL, p. 92) ; when Luther was one 
of the very few prominent men who strongly opposed the 
killing for heresy on any account/ when Beza, to justify 
Calvin, published his De Haereticis a civili Magistratu puni- 
endis, a translation of which was afterwards laid before the 
magistrates of P'riesland by some Calvinist ministers, in- 
sisting on the adoption of its principles — namely, the killing 
of heretics — against the inoffensive Arminians because they 
could not entirely adopt Calvin's doctrine of predestination 
(Brandt, Historic der Reformatie in de Nederlanden, 11, D, Bl. 



' Luther wrote, " Auctoritate ejus statu ti impii Magistratus pseud oprophetas et 
hsereticos interfecerunt quosquos voluerunt. Idem sequuturum esse timeo et apud 
nostros, si semel uno exemplo licitum probari poterit, seductores esse occidendos, 
cum adhuc apud Papistas videamus hujus instituti abusu innocentem sanguinera 
fundi pro nocente. Quare nullo modo possum admittere, falsos doctor es occidi ; 
satis est eos relegare, qua pcena si posteri abuti volent, mitius tamen peccabunt et 
sibi tantum nocebunt." De Wette, Letters, iii. 1013. 



PRIMORDIAL RIGHTS, 1 93 

9-13); and when the Calvinists, in turn, were oppressed in 
Saxony by the Lutherans, and people persecuted for crypto- 
Calvinism ! The age when an Edward Coke, in the very 
debates on the Petition of Right, which was to erect an in- 
superable bulwark around personal liberty, could excuse the 
imprisonment for life of the children of the Irish rebels, in the 
Tower, by saying that it had served for their salvation, be- 
cause otherwise they would have been Catholics ! When 
neither the Church of England nor the Presbyterians, when 
no one sect sufficiently large to claim power at all, could 
elevate itself above dogmatic exclusiveness and the . conse- 
quent spirit of persecution and ecclesiastic arrogance. 

LII. II. Property, or, to use a term more fitted because 
more comprehensive, acquisition, is another primordial right, 
by which I mean all a man owns, acquires, and the means 
wherewith he acquires, that is, labor, skill, and exchange. 
Every man has a right, because it is his bounden duty, to 
maintain himself and his family, he has a fair share in the 
means of support offered by nature, and the right of acquiring 
property in the various ways indicated above, where I treated 
of property, because appropriation, acquisition, properly be- 
longs to his nature. I have a primordial right to use my 
labor as I choose, if I do not thereby transgress the rights of 
others, and the state must neither disturb me in this lawful 
pursuit, nor allow others to disturb me, for instance, by pre- 
scribing to me, directly or indirectly, the limits below or above 
which I ought not to go, as the trade's-unions of late have 
done. Exchange is one of the most lawful, necessary, and 
natural means of acquisition, founded in the variety of soil, 
climate, genius of the people, agents of nature, etc., and one of 
the first and most effective means of civilization. Exchange 
lies in the great order of things, and a disturbance of it is 
always productive of injurious consequences. It ought never 
to be interfered with any farther than is absolutely necessary, 
but never to promote, as it is called, the interests of the many. 
No one has a right to do it, be it the daily and hourly ex- 

13 



194 THE STATE. 

change of labor and property in a community, or between 
nations by way of extensive commerce. Perhaps nine-tenths 
of all the wars of the last three centuries have arisen out of 
disregard of this primitive right and that of religion. 

Society is deeply interested in the protection of the right 
of property, because the whole progress of society is con- 
nected with it. Fraser, in his Persia,^ gives an account of a 
china-maker who had made some improvement in china ware, 
and was sent for by the court to make some for the shah, and 
of course for all the courtiers. To save himself, he bribed 
the officer who was to carry him to report that he was not 
the man, because his going to court and making china for the 
court would have ruined him, and he forswore attempting any 
further improvements. It is a striking anecdote, but in point. 
Mr. Elphinstone, in the work already quoted, mentions, on 
p. 255, that a man at Peshawur, a very large town in Afghan- 
istan, wished to remit his money to India, and came by night 
to his secretary to count it out. " These precautions," adds 
the author, " were not taken from any present danger, so much 
as with the view to futurity." 

There is no right more essential to man, as man, than that 
of acquisition — of property ; yet none calls for more modifica- 
tion and regulation by the state, because it relates more than 
any other right to the material world, and more affects in its 
enjoyment the jural relations of others. All may live at the 
same time, all follow their conscience in matters of religion, 
but one only can own the same piece of land. The legislation 
of every country, therefore, has necessarily acted upon the 
subject; nor has property ever been considered as a right 
which could on no consideration be abolished and remodelled, 
Lycurgus made a new division ; the French made a new dis 
tribution of a large portion of landed property. It is easily 



* Vol. XV. of Edinburgh Cabinet Library. On page 312 is related another anec- 
dote, not entirely out of place here. A merchant had himself daily bastinadoed, 
and finally could bear a thousand strokes with a stick, so that he might be well 
accustomed to it if the governor should send for him, to beat out the confession 
ivhere his treasures were hidden. 



EMIGRATION. 1 95 

explainable ; every one has an absolute right of acquisition 
by labor, but there are many other means of acquisition, not 
absolutely founded in nature, but found to be the best for the 
welfare of society. These, of course, may be changed : for 
instance, the laws of inheritance ; everywhere they are entirely 
dependent upon legislation. Nowhere, however, except in 
the rude despotisms of force, is the acquisition by one's own 
labor interfered with on the score of preventing too large for- 
tunes, though their accumulation by other means is interfered 
with, — for instance, in England, by prohibiting the accumula- 
tion of a fortune for a remote descendant. (Peter Thellusson's 
curious will, which occasioned the passing of 39th and 40th 
Geo. III., c. 98.) 

LIII. 12. Lastly, the individual has the right to move where 
he pleases : the right of personal liberty, as well as of exchange, 
would already sufficiently warrant this right, the right of emi- 
gration, of expatriation. Next to my life, is the place where 
I live, where I exchange my labor, the most important, to me, 
of all my rights which touch the physical world. Special 
circumstances may limit this right, as that of utterance, but 
it can only be by way of exception, notwithstanding all that 
has been said to the contrary on the ground of natural allegi- 
ance — an idea which necessarily arose out of other miscon- 
ceptions of the relation between the king and his subject. A 
state would have the right to declare that every native-born 
person caught in arms against it should suffer death, on the 
score of danger. For instance, suppose the United States to 
be at war with Mexico. The latter country would doubtless 
endeavor to obtain American captains to command her ships,, 
and the United States would have a right to declare that every 
native American made prisoner in serving Mexico should die; 
a law which would be borne out by the feeling of every true 
heart, to whom it is repugnant to fight against the country'' 
that bore him. But take another case. Suppose a Canadian 
has resided twenty years in the United States, and been an 
active ^^itiren; a war breaks out between Great Britain and 



196 THE STATE. 

the United States ; suppose, in addition, Great Britain is the 
wrongful assailer ; an English army attacks the place where 
the emigrated Canadian resides : shall he not defend his 
country ? nay, may not his very feelings be entirely engaged 
for the United States ? There is no natural relation between 
subject and monarch, any more than that it is natural for man 
to live in society, in a state, and that the state has power over 
him for all legitimate purposes, that is, to protect him in its 
widest sense, not to interfere with him for any other purpose 
than to protect others at the same time, and of course it must 
be one of the first of all rights of a free being to choose that 
place and that society where he thinks he may best obtain his 
individual objects. It has been asked by superficial thinkers, 
Is it man's highest object to live well ? shall he leave his 
country the moment he thinks he can find better food some- 
where else ? No, man has far nobler objects than merely 
good living; but before all he must obtain the common com- 
forts of life for himself and family, as the basis for higher 
things, as he has to take care of health, not as the object but 
as the necessary requisite for a sound life, a life that answers 
its purposes. If over-population or over-taxation grind down 
a man so that he can hardly obtain food for his family, still 
less elevate them morally and intellectually, and he has an 
opportunity to remove to an unoccupied virgin soil, which, 
like a kindly friend, readily answers to every exertion with 
ungrudging abundance, shall such a man linger out a life of 
wretchedness, and bring up his children in sloth and igno- 
rance, merely to satisfy a theory? shall he forget his most 
sacred duties towards himself and his family, — that is, to toil 
hard to become independent, a noble object to every man, — 
because some conceive it unpoetical to leave the native soil 
for a better one, though there is poetry in an emigrant who 
goes with nothing but a willing arm and his plough, a con- 
queror, to the West? It is the order of things to emigrate ; 
but if a man has a right to emigrate he has likewise the right 
of expatriation — for man ought to be a citizen, according to 
his destiny. I have spoken already of the fact that no natior 



ALLEGIANCE. 



197 



was more given to emigration, and thereby did confer incal- 
culable advantages upon mankind, than the Greeks ; yet who 
loved their country more ?^ 

LIV. I shall return to the subject of natural allegiance 
when I speak of patriotism. Here I would inquire, Where 
does that relation exist, if natural means material ? The son 
is naturally related to his father, and that relation cannot pos- 
sibly be dissolved, but that of allegiance has been dissolved 
a thousand times. Why is there an oath of allegiance ? We 
do not swear to be the sons of our mothers ; and, above all, 
why have all oaths of allegiance ever been held, when neces- 
sity arose, as conditional only ?^ When an English king dies, 
his queen yet living, and no direct descendant of the king 
succeeds, allegiance is sworn to the new monarch saving the 
rights of any issue of the late king, or, in other words, on 
condition that within proper time the queen dowager do not 
give birth to a direct successor, as was the case respecting 
Queen Victoria. (See proclamation dated Kensington, June 
20, 1837.) Does this not abundantly prove that allegiance is 
a political and not a natural relation, if the latter word be used 
in contradistinction to the former? though I know that this 
goes directly against Lord Coke, where this opinion is called 
the "error of the Spencers, that the homage and oath of le- 
geance was more by reason of the king's crown (that is, of 
his politique capacity) than by reason of the person of the 
king, which was condemned by two parliaments, one in the 



* [Their country was their -Kokiq. There was little love to Hellas, such as wo 
feel. No race was ever more broken up.] 

^ Mr. Raumer, whom I quote here because he is a decided royalist, — not, in- 
deed, an absolutist, — in speaking of the Portuguese revolution, by which the 
duke of Braganza was made king, against Philip 11. of Spain, and after having 
stated the sound reasons of the Portuguese for breaking their allegiance, adds as 
his own remarks, " History shows there is a measure of tyranny from above 
downward, to suffer which slavishly, becomes a crime." To avoid misquoting, 
I continue his remarks : " And that on the other hand, at times, such a desire of 
opposition, disobedience, and revolt becomes so prevalent among nations that no 
government remains possible." Histo»y of Europe, etc., vol. v. p. 474. 



198 THE STATE, 

reign of Edw. II., called Exilium Hugonis le Spencer, and the 
other in I. Edw., cap. i." (Calvin's Case, Coke's Reports, part 
vii.) The old English jurists speak of a law of nature above 
parliament — and so no doubt it is — according to which exists 
the indissoluble tie between subject and liege lord or lady, so 
that outlawry could not even affect this natural \\q. (See the 
same case in Coke's Reports.) British history, as we all 
know, abundantly proves the contrary, for the tie has been 
dissolved. Blackstone (i. 369) says, " Natural allegiance is 
therefore a debt of gratitude ; which cannot be forfeited, can- 
celled, or altered by any change of time, place, or circum- 
stance, nor by anything but the united concurrence of the 
legislature." Not to speak here of the unphilosophical foun- 
dation of a general civil obligation, and not a specific one, 
upon the basis of gratitude — for suppose the citizen feels no 
gratitude, and is right in not feeling it, because nothing has 
been bestowed upon him to be thankful for, as certainly may 
be the case if the monarch does not protect, but, on the con- 
trary, strives to undermine the laws — secondly, that gratitude 
is altogether a feeling over which the state has no control, 
and therefore no power to demand it — thirdly, that this grati- 
tude for protection would be owing not to the king's person 
(for how can he personally protect me?), but to the state, in 
and by which he is king — not to speak of all these objections, 
Blackstone contradicts himself, if he means by natural allegi- 
ance anything like that claimed by the old British lawyers, 
because in that case it indicates a relation between two indi- 
viduals, indelibly stamped upon both by nature, that is, by 
birth; yet the commentator says in the same sentence that 
allegiance may be dissolved by the united concurrence of the 
legislature. Can parliament declare a man not to be the 
brother of his father's son? can it declare a native English- 
man not to be a native Englishman? Natural allegiance 
without unconditional allegiance is a logical absurdity, yet 
surely this is in the eye of every Briton a political heresy. 
For if the subject owes allegiance only so long as the monarch 
does not destroy instead of protecting the objects of the state, 



ALLEGIANCE, 1 99 

■ — and no one will now be so hardy as to maintain that sub- 
jects must submit without resistance to a Heliogabalus, — 
then allegiance to a monarch is a thing made by law, which 
law, it is allowed, may rest on ancient custom, yet it can be 
unmade; and, what is more important, it is to the crown, that 
is, to the state, not to the person of the king. If not, how is 
it with the allegiance of the French, who have sworn it within 
the last forty years to ever so many persons and governments? 
The argument would have been much more plausible if natu- 
ral allegiance had been represented as depending upon our 
nativity within the bosom of the particular nation, and, through 
it, connected with the monarch — in short, if national allegi- 
ance had been claimed; and the deep-rooted feeling of every 
true heart towards the nation to which we belong by blood 
would have afforded afar better foundation for allegiance than 
the very feeble one of gratitude; for our love to the country 
of our birth outlives in many instances our gratitude. The 
meanest factory-boy in Manchester may still feel attached to 
England, but it would be very difficult to point out what 
reason he has for gratitude. Gratitude is a feeling which can 
be called forth only by bounties over and above what I de- 
serve. Does the state shower these bounties upon him ? 
Does the state do more than it is absolutely bound to do ? Is 
he not quit with the state as to gratitude, every evening, after 
an unrequited day of overwhelming labor? Who is bound to 
be grateful, the state, or the poor man who has always lived 
by his work, paid heavy taxes, and finally is pressed into sea- 
service, where he is crippled? The national allegiance can- 
not, according to English law and history, be severed, but the 
allegiance to the monarch can. (See Patriotism, where more 
on national allegiance as a primitive element of society will 
be found.) In Macdonald's case in 1746, before Chief-Jusfice 
Lee, the indissolubleness of British allegiance was maintained. 
(For the American doctrine of allegiance see Kent's Com- 
ment, ii. page 41 et seq. Important is Mr. Marshall's (after- 
wards Chief Justice of the United States) speech in the House 
of Representatives, on the case of Robbins, who had been 



200 THE STATE. 

claimed by the British, given up by President J. Adams, and 
executed by the former.' ^ 

LV. The rights which I have called primordial, or some 
of them, have been termed by others absolute rights. (See i. 
Blackstone, 124.) This is not a very apt term, for, as the 
sequel of this section will show, there are no absolute rights, 
if this term mean either that they cannot be abridged, or that 
men cannot agree to give them up. Even the absolute right 
to life has been given up. The custom of drawing lots for 
being sacrificed to some deity has existed with various na- 
tions ; and the doomed person was willing to be sacrificed. 
Though in many instances the wives of deceased Hindoos 
were induced by others to allow themselves to be burnt 
with the bodies of their late husbands, yet there are many 
instances of wives resisting all inducement not to be burnt. 
Still less apt appears the term when we consider that all 
nations allow the state to force me to expose my life. But the 
term is owing to that mistaken notion of a state of nature. 
Blackstone says, absolute rights are " such as would belong 
to their persons merely in a state of nature, and which every 
man is entitled to enjoy, whether out of society or in it." 
There is a strange confusion of ideas — rights in a state of 
nature ! What is there a man may not do if out of society ? 
And again, " which every man is entitled to enjoy." A state 
of nature, and yet entitled^ which means having a title to ; but 
who gives the title ? So much for these fictions. Man never 
lived in this state of nature, because he never lived or could 
live without law, in however incipient a stage of civil develop- 



* Compare with what has been stated on these important subjects, Hugo oro- 
tius, Puffendorf, Chitty, Vattel, Blackstone, Kent, and for the legal references, D. 
Hoffman's comprehensive work. Course of Legal Study, 2d ed., Baltimore, 1836, 

* [The British government has practically abandoned this doctrine of inde- 
feasible allegiance by a statute of 1844, allowing one of the principal secretaries 
of state to grant all the capacities of a native-born British subject except two to 
foreigners desirous of being naturalized; and also by the provisions of the con* 
vention with the United States relating to naturalization in 1870.] 



INALIENABLE RIGHTS. 20I 

ment this might be. Fictions make matters under hand ap- 
parently very easy ; but they revenge themselves, and we are 
unable to eliminate them again, as we may do in mathematics 
with assumed terms. 

Others have used the term inalienable rights, an expres- 
sion which would not have been so freely adopted had not 
those who used it started from the idea that the state is pro- 
duced by contract, in which certain rights are given up for 
higher considerations ; or had not those who renewed the 
more profound inquiries into the true character of govern- 
ment found already governments with extravagant claims, or 
which had absorbed almost all liberty already existing, when 
it appeared necessary to show that certain rights could not 
be alienated. But the term is liable to some objections. 
Does inalienable mean that those rights cannot be alienated ? 
Facts speak against it. We see people submit to the priva- 
tion of all enumerated rights. No right is more founded in 
nature than that of the father to protect his child. Yet Mr. 
Norris, in his Journey to the Court of the King of Dahomey, 
relates that children are taken from their mothers and placed 
in distant villages to destroy all family feeling. Is any right 
more sacred than that of the husband to protect the chastity 
of his wife ? Yet Mr. Elphinstone (as quoted previously, p. 
483) informs us that ** one of the laws of Yaza forbids adul- 
tery. The inhabitants of Cariader applied for and received an 
exemption on account of their old usage (called Kooroon 
Bistaun) of lending their wives to their guests." What can 
be more undoubted than that I have a right to benefit by the 
communion with other minds, that no earthly power exists 
which has a right to interfere with my thoughts and their de- 
velopment ? yet in Austria not only are certain books pro- 
hibited, but officers on the frontier may refuse the importation 
of any book they deem unfit, and the people do not seem to 
consider it as any peculiar hardship. If any right be inherent, 
it is that of life ; yet when the sultan formerly sent g silken 
cord to his vizier, he kissed it and hung himself, and made no 
effort to defend his life. Now, suppose the cord had not been 



202 THE STATE. 

sent for an alleged crime ; surely that vizier had alienated the 
right of life. Does inalienable right mean that which the 
people have a right at any moment to recover ? The people 
have the right to recover or establish any right whatsoever, 
but they have frequently not the means. What right is there 
that could possibly be lost by way of compensation for bene- 
fits supposed to be derived from a ruling dynasty ? Nations 
do not sell themselves as property. Does it mean those rights 
which ought not to be alienated? No right ought to be 
alienated which is necessary for the well-being of the people, 
nor is any right irrevocably alienated, nor can it ever be so.^ 

LVI. Be it repeated, primordial rights are those which flow 
directly from the nature of man inasmuch as he is a social 
being, rights which are of primordial importance, and which 
present themselves the more distinctly to the human mind 
and are acted out the more definitely in reality, the more 
mankind advance in civilization. It is on this account that the 
word primordial has been preferred to indelible, indefeasible, or 
inherent rights ; for they are in periods of political transition 
obliterated, nor can they often be otherwise, and, what is 
more important, these latter names convey the idea that they 
were originally distinctly- acknowledged, which is not the 
case. Imprescriptible is a better term ; they might be called 
essential rights, if essential were understood to mean that 
they belong to the essence of the individual. They all flow 
from the great end of all political union, protection, which, of 
course, likewise presents itself with greater distinctness the 
more man advances in his civil progress. The state never 
ceases to protect ; even the blackest criminal, the moment 
before his head falls, is yet protected. It was a most fal- 
lacious argument from the lex talionis, that " frustra legis 
auxilium invocat qui in legem committit," or, as St. John said 



* [A right may be inalienable although I am deprived of it and unwilling oi 
unable to take measures for its recovery. I may waive a right in a particular 
case, as the right to property, yet property may be an inalienable right. I may 
waive even the right to live, yet no one may take it away without my consent. ] 



THE PUNITORY RIGHT. 203 

before the lords, when he brought the bill of attainder against 
Earl Strafford (April 29, 1641), " He that would not have had 
others to have a law, why should he have any himself? Why 
should not that be done to him that himself would have done 
to others ?" ^ Even some modern writers have erroneously 
endeavored to derive the punitory right of the state from the 
fact that the offender, by doing wrong, declares himself out 
of the jural society. (See, for instance, Fichte, Natural Law, 
vol. ii. p. 95, et seq., in German.) Nothing can be more un- 
tenable in all its bearings. On the contrary, the state being 
essentially a jural society cannot possibly act except by law 
and upon jural relations; and, in as far as the right of an 
individual is the condition of his union with other rational 
individuals, punishment is the right of the offender, however 
paradoxical this may sound at first, because we are accus- 
tomed to imagine under right some specific privileges. State 
punishment is likewise the protection of the offender, who 
without it would be exposed to all, even the most extrava- 
gant, modes of private redress. No offender would hesitate 
to acknowledge and claim state punishment as his right, if 
choice were left him between the state punishment, which, 



« State Trials, vol. iii. p. 159, taken from 8 Rushworth, 675. Though I blame 
the argument, I do not wish to be misunderstood as to the trial and sentence of 
Strafford. He deserved his fate. That we are now so happy as to be able to 
suffer ministers to live who conspire against the fundamental law, is no proof that 
it could then be done. Nor does the case of the ministers of Charles X. of 
France sufficiently prove that it can always be done ; but it is a proof — and civ- 
ilized mankind may congratulate itself upon it, as one of the happiest events in 
the nineteenth century — that to grant them life is infinitely preferable in every 
way, if at all possible. The difhcult case to which I allude takes place when 
the n.inister has a large, powerful faction attached to him personally, especially 
when he is a military leader of consummate talent and civil war must be the 
consequence of mercy towards him. The difference between Strafford and Po- 
lignac was also this, that the former was a man not only of the highest talent, 
but of the highest mental energy — a man than whom no one could be imagined 
more fitted to be the defender of absolutism ; there was much that was great in 
Strafford. Polignac was considered daring on account of his folly only. Not 
one royalist looks up to him at present. Strafford, if set free, could not but be 
drawn by circumstances, even if it had been against his will, into the highest 
spheres of momentous action; if imprisoned, all knew he would soon be freed. 



204 



THE STATE. 



because it is state punishment, requires formal trial, on the 
one hand, and, on the other hand, those summary proceed- 
ings against criminals caught in flagrante delicto, which we 
find in perhaps all early codes, and sometimes acknowledged 
to a very late period (Blackstone, iv. 308), or to which an ex- 
cited people sometimes return when the regular trial appears 
too slow for their inflamed passions, as has been the case in 
those riotous and illegal inflictions of death or other punish- 
ment, so unfortunately called Lynch law, in our own country. 
I say, unfortunately called Lynch law, for it is ever to be de- 
plored if any illegal procedure receives a regular and separate 
name of its own. By this very application of a technical term 
it assumes an air of systematized authority, which has an 
astonishing effect upon the multitude, and in fact upon most 
men. Give a separate and technically sounding name to a 
thing, and you take from it much of its harshness for the 
human ear. Many a member of trades'-unions in Scotland 
would not have been willing to commit outrages upon the 
person of his neighbors, or even murder, had it not been 
called slating, or by some other technical term. The same 
principle applies to errors in science, religion, the arts. (See 
also Blount's Law Dictionary, tit. Lidford Law, and Blount, 
Fragm. Antiq., ed. of 1734, p. 327.) 

The state does not act as a state the moment it ceases to 
protect, that is, to act on jural relations. We see then like- 
wise how void of meaning such phrases as " the offended 
state," "the wrath of the state" (''of a king"), are. By what 
organ, in what possible manner, shall the state feel offended ? 
Individuals may feel offended, for the feeling of offence is 
personal. A king may be wrathful ; so much the worse for 
him; he is not so as king, but as a private person ; the crown 
cannot be angry ; and all that men have been obliged to hear 
about offended majesty and the terribleness of a king's wrath 
has arisen out of the unfortunate confusion of state and 
family, the crown and the individual who wears it; or it was 
urged in order to cover acts of hatred and personal revenge 
of the monarch or some officer with the garb of official re- 



STATE EXEMPT FROM PASSION. 205 

venge. Abject flatterers have not been wanting who openly 
pronounced or alluded to a similarity between the Deity and 
the monarch in these acts of dreadful indiscriminate revenge, 
while the slavish flatterers or hypocritical deluders of the 
people, in their turn, pleased the revengeful passion of the 
multitude and goaded it on to still greater excesses by telling 
them about the grandeur of a nation's revenge, not unfre- 
quently seeking in the very vastness of the slaughter an 
element of grandeur which ennobled the revenge. When the 
devastating armies of the Convention were sent out against 
the doomed cities of Lyons, Nantes, Bordeaux, and Toulon, 
when but one problem seemed to occupy the many leaders 
and commanders, that of slaughtering the greatest number in 
the shortest time in the most savage manner, the people were 
told that a nation's revenge was like the thunders of nature 
— terrible and indiscriminate. Not a day passed that long 
speeches on the revenge of the people were not delivered in 
the Convention ; and what is ever more gratifying to a heart 
maddened with passion than a justification, a reason, nay, a 
mere simile, that affords some plausible excuse for revenge ? 
The state has nothing whatsoever to do with wrath, though 
the organs of the state may be wrathful ; wrath and revenge, 
whether in reference to monarchs or nations, are political ab- 
surdities, and every political absurdity is a cruelty in practice. 
It was a saying of the deepest import, when Charles V. was 
asked how it happened that at times he would show himself 
vexed at trifles but never at things of magnitude, and he an- 
swered, "The person of kings may feel annoyed, not their 
office" (la persona de los reyes se puede enojar, no el oficio. 
Perez, Relaciones, 554). It applies equally to the people. 
They may be impassioned, they may be agitated by revenge 
like a roaring sea, but do not deceive thyself, whatever is 
done for revenge remains the act of each individual as such, 
and no vote of a political body changes the matter, for the 
state knoweth not revenge ; it cannot know it.' 



Crimes are the acts of individuals, and not of denominations ; and there- 



2o6 THE :^2ATE. 

LVII. Rights, it has been stated, can only exist between 
men ; animals have no rights. Man, as we have seen in the first 
book, differs essentially from the animal ; and a being which 
unites those essential qualities enumerated there is called man. 
As a practical rule, I believe it maybe stated that those beings 
who, in a sound state of body, speak or exchange, are men, com- 
munion and exchange of labor being the two most common 
manifestations of reason. As soon, then, as we see one of these 
marks, we are bound to acknowledge certain rights in the sub- 
ject. Be the individual ever so low, or the race to which he 
belongs ever so far removed in capacity from ours, we have no 
right to kill him, for instance, like an animal, simply for our 
information or gratification. So sacred are the rights inherent 
in humanity that we acknowledge them though the distin- 
guishing marks from which they first were derived have 
vanished ; we esteem man even when nothing but outward 
form remains. An idiot, in intellect far below some animals, 
cannot be killed at convenience, and though he may suffer 
night and day, though the beholder may pray that his life 
may be taken away, we dare not do with him that in which 
several savage tribes consider themselves justified merely on 
account of the advanced age of a parent. 

It is not here the place to investigate how far absolute ne- 
cessity of physical self-preservation may justify one man in 
disregarding all the rights of humanity in another — for in- 
stance, when shipwrecked people sacrifice by lot one from 
among them to give sustenance to the others. The positive 
law cannot reach these cases ; but who is there that lately 
perused the accounts of the several suffering parties into 
which the merciless element had divided the few survivors of 



fore arbitrarily to class men under general descriptions, in order to proscribe and 
punish them in the lump for a presumed delinquency, of which perhaps but a 
part, perhaps none at all, are guilty, is indeed a compendious method, and saves 
a world of trouble about proof; but such a method, instead of being law, is an 
act of unnatural rebellion against the legal dominion of reason and justice ; and 
this vice, in any constitution that entertains it, at one time or other will certainly 
bring en its ruin." Burke, Speech at Bristol in 1780, Works, Bohn's ed., ii. 164. 



VARIOUS RACES OF MAN. 



207 



the many people on board the steamboat Pulaski, that did not 
rejoice at Mr. Heath's manful opposition to the proposal of 
casting lots that one might be slaughtered for the rest ? Who 
has read without moral loathing the account of the half-breed 
Indian, one of the companions of Captain Franklin on one of 
his polar expeditions, who was strongly suspected of having 
shot a member of the party in order to obtain food for some 
days ? The law justly considers life as the first and most 
precious right ; but is death, after all, so horrid ? Is it not 
better to die than to feed on our own species ? 

LVIII. Yet, though the distinction between man and brute 
has thus been distinctly drawn, comparative anatomy and phy- 
siology are establishing daily more clearly the fact that all 
those beings comprehended under the vast term of the human 
species are not only morally or individually distinguished from 
each other, but in a very marked way physiologically, and 
as to their capacities, by whole races, thus forming a gradual 
scale of superiority. The most peculiar skulls of the so-called 
Pre-Inca race, found in South America, are so entirely dif- 
ferent from ours that they alone show an essential difference 
of that race from ours. The Cafifirs, the Bushmen, the Hot- 
tentots, and the poor Papuans, for instance, differ so materially 
in their anatomy and physiologic organization from the races 
which comparative anatomy as well as the history of civilization 
teaches us, by conclusive facts, to consider as superior, that we 
should abandon all truth were we to deny the difference. 
There is probably no reflecting man who was not painfully 
startled when he became first acquainted with these neverthe- 
less imperative truths. We love to treat, in our theories and 
meditations, all men as absolutely equal ; but truth is truth, 
however it may militate with beloved, nay, generous theories; 
and God is the God of truth. He must have had his all-wise 
ends in creating these different races, as he must have had his 
ends in creating those many tribes and races who without 
light, without expansion of thought, or cultivation, have in- 
creased and vanished, or who continue to people so many 



2o8 THE STATE, 

parts of the globe, yet do no more than people them, tribes 
which live without history, that is, without progressive 
change, interesting to the naturalist, but of no account in 
the history of mankind. Nor is it for us here to speculate 
how far these tribes, now so low and brutish, may be suscep- 
tible of organic improvement, which, it cannot be denied, has 
taken place with some races. The negro of Virginia is su- 
perior, as to the formation of his head, to the negro of the 
more southern states, because he descends from earlier-im- 
ported generations. The negro of the most southern of the 
United States, again, has much more expression of intelli- 
gence than the newly-imported negro in the West Indies. So 
has civilization improved the formation of the head in the 
Celtic race. 

Man, as to his existence on this globe, may be considered 
in the following points of view : physically and individually ; 
in this respect he forms a link in the great and endless chain 
of distributed matter, and has his meaning, as the animal, the 
plant, the mineral, has in God's vast creation. He may be 
considered individually, morally, and intellectually; in this 
respect he is above all other creatures, and an immortal 
being. Finally, we may consider man socially; in this respect 
he has his meaning as a member of a society which passes 
from one stage to another, which establishes institutions 
gradually developing themselves, and which by the amount 
of its civilization contributes a share to the general, gradual, 
and continuous development of the favored races — the history 
of the civilization of mankind. 

Whatever may be the result of reflection, when we consider 
those lower races of the human species under these various 
points of view, this remains certain : 

When we pronounce the name of man, we pronounce the 
belief of immortality ; 

When we call a being man, we attribute a separate moral 
value of his own to him, and cannot any longer use him 
merely for our benefit, as we use the animal. We attribute 
rights to him. 



RIGHTS OF MAN. 209 

How far the primordial rights ascertained in preceding 
passages may practically expand with each race, no human 
mind can say; but they are the rights towards a greater and 
fuller acknowledgment of which each step in the progress of 
civilization infallibly tends, and therefore belong to the very 
nature of man. 



CHAPTER VI. 

The State necessarily comprises all. — No one can declare himself out of it ; no 
one can be considered out of it. — Different Meanings attached to the word 
State at different Periods. — Mankind divided into many States. — Why ? — Sov- 
ereignty. — Definition. — There were never individual Sovereigns before the 
Formation of the State. — Who is the Sovereign ? — Manifestations of Sover- 
eignty. — Public Opinion, Generation of Law, Power. — Public Opinion. — Law : 
what does it consist of? — Public Will. — Nature, Common Sense, Custom and 
Usage, Common Law, Charters, Codes and Statute Law, Decisions, Prece- 
dents, Interpretation, Authentic Interpretation, Digests. — Judge-made Law, so 
called. — Power rests with Society, cannot rest anywhere else. — Government, 
what it is. — Various Kinds of Governments as to their Origin. — Always rest on 
Opinion. — Importance of distinguishing State, Government, Sovereignty, Su- 
preme Power. — Divine Right. — Monarchs called of God. — Frederic's and 
Joseph's View. — No Monarch ever was or can be Sovereign in the true Sense. 
— Meaning of the Word Sovereign it used of the British Monarch. — Declara- 
tion of Rights. — True Relation of Moi* ■♦rch and People. — Can the King really 
do no Wrong, constitutionally or legally ? — He can do so, and it has been 
decided that he can. — British Monarch the Fountain of Honor. — Its Meaning. 
— Different Title of Monarchs; some of the Land, some of the People. 

LIX. All actions of man, and all the relations in which he 
stands to other men or to things, may be disturbed, and all 
his actions and relations must be consentaneous to the funda- 
mental principle that he is directed by his nature to live in 
society, and to obtain in and through society his highest ob- 
ject, namely, that of being fully man. Hence it is that the 
state, which has been found to be the society, founded upon 
the relations of right, and which has to protect them in the 
highest sense of the term, extends to all members of that 
society, and to all their relations in as far as they manifest 
themselves outwardly, that is, by actions. The state must 
maintain right ; it must repress interference with right, and 
must help every one to his right, which includes, as has been 
indicated several times, that it must assist me in obtaining 
that, by and in society, which is necessary for me physically 



MEANING OF THE TERM. 211 

and intellectually, and which I cannot obtain individually. 
No man, therefore, has a right to declare himself out of the 
state, and no circumstance can sever him from the state, so 
long as he is man, that is, lives, because he has always, by 
the mere fact that he is a human being, rights, the infringe- 
ment of which the state must repel. Passive members, e.g. 
children, are still members of the state, and demand its ac- 
tion. On the one hand, therefore, the Jacobites were as much 
members of the state, and England had as much right to 
make them amenable to the laws of the land, as if they had 
taken the oath of allegiance ; on the other, paupers and idiots, 
aliens and travellers, are as much within the sphere of the 
political action of society as the richest and wisest, or as the 
members of long- settled families. 

The word state has had very different meanings, ever since 
it has been used ; that is, people have taken different views 
of the subject at different periods, as of every important 
one ; and the idea of the state follows the general law of 
ideas, namely, that they are more clearly developed and pre- 
sent themselves with their more distinct and essential char- 
acteristics only in the course of time, being subject likewise 
to unfavorable influences and consequent retrograde move- 
ments. I shall hereafter speak farther of the view which 
the Greeks took of the state ; the Romans formed originally 
a conquering city. At a later period, the emperor had all 
the power over very incongruous parts of the empire. Yet 
even then the idea was distinctly recognized that the emperor 
was placed on the throne to do justice ; that men were con- 
gregated for some mutual benefit. Previous quotations prove 
it. The emperor of Germany swore at his coronation to pro- 
tect the widows and orphans, and have justice administered 
to all. 

" Formerly," says Hallam (note to page 51, vol. i. Constitu- 
tional History of England), " the king had taken an oath to 
preserve the liberties of the realm, and especially those granted 
by Edward the Confessor, etc., before the people were asked 
whether they would consent to have him as their king. See 



212 THE STATE. 

the form observed at Richard the Second's coronation, in 
Rymer, vii. 158. But at Edward's coronation the archbishop 
presented the king to the people as rightful and undoubted 
inheritor by the laws of God and man to the royal dignity 
and crown imperial of this realm, etc., and asked if they would 
serve him and assent to his coronation, as by their duty of 
allegiance they were bound to do. All this was before the 
oath. (Burnet, History of the Reformation, ii., App., p. 93.) 
Few will pretend that the coronation, or coronation oath, 
was essential to the legal succession of the crown or the 
exercise of its prerogatives. But this alteration in the form 
is a curious proof of the solicitude displayed by the Tudors, 
as it was much more by the next family, to suppress every 
recollection that could make their sovereignty appear to 
be of popular origin." Hallam gives credit to Lingard for 
having remarked this important change in the coronation 
ceremony. 

At the late coronation of Queen Victoria, the archbishop 
of Canterbury pronounced these words, while the queen re- 
mained standing and turned towards the people on the side 
at which the recognition was made : " Sirs, I here present 
unto you Queen Victoria, the undoubted queen of this realm; 
wherefore, all you who are come this day to do your homage, 
are you willing to do the same ?" 

LX. In the worst feudal times the idea of the state was 
probably more obscured than long before or ever after. Actual 
force ruled in many parts of Europe. But even then the in 
dividual feuds were considered as unhappy anomalies. Rob- 
bers may do many bold acts, and unhappy is the state of 
things where they may do them with impunity. Duke Warner 
wore a legend worked in silver on his surcoat, " I am Duke 
Warner, the chief of the Great Company, the enemy of God, 
of piety and mercy." (Life of Joanna of Sicily, vol. ii. p. 2.) 
Melancholy is the age or country, indeed, where this can 
even be dared, where this is suffered even among the banditti; 
but the idea had never been given up that rulers became 



IN FEUDAL TIMES. 



213 



such in order to maintain justice and to protect the church.' 
Even in the worst and most heartless periods of French poli- 
tics, when an indefinite idea with regard to the state seemed 
to be floating about, sometimes, as is common to this day, 
confounding it with the government; sometimes imagining it 
as something built upon the people, who thus are believed to 
form the substratum of the state, and were consequently com- 
pared by Richelieu to mules ;=^ sometimes as if it were concen- 
trated in the monarch, who thus had a right to, and was the 
rightful owner of, all property, church and lay; 3 or as if the 
government, considered in its consecutiveness from age to 
age, were an instrument in the hands of the royal house or 
consecutive family ; — even then the obedience of the people 
was always claimed, either on the ground of general benefit 
that without it everything would dissolve into anarchy, or on 
the ground of divine law, that is, the divine order of things, 
and of course the divinity could not be imagined as having 
created millions for the benefit of a few or one; nor was it so 



* * At times, again, the word state was used to designate neither the actual 
government, nor the king, nor the nation, but rather what we now would term 
the organic institutions of the state, the primary organism of the state. Thus, 
president Jeannin of the parliament of Paris said at the states-general of 1593, 
when the question whether the " sovereign courts" should be admitted to the 
assembled three estates, in order to elect a king of France, after Henry III. had 
been murdered, " Since these high authorities (the parliaments) have thus formed 
ever a part of the state," etc. See Raumer, Hist. Sixteenth and Seventeenth 
Cent., illustrated by Original Documents, translated from the German, 2 vols., 
Lond., 1835, vol. i. p. 364. 

= In Richelieu's Political Testament addressed to King Louis XIII., chap. iv. 
sect. 5, he says, " The people may be compared to mules, which, being accus- 
tomed to the load, are more spoiled by a long rest than by work ; but as this work 
ought to be moderate, and as the load of these animals ought to be proportionate to 
their strength, it is the same with regard to the subsidies to be paid by the people. 
If they are not moderate, even if they were useful to the public, they would be 
nevertheless unjust." Considering those times, when the term politics meant a 
system of wisdom and experience to manage the affairs of the king, and when 
" la gloire de S. J/." was often used as designating the great and main object of 
the state, precisely as now frequently the success of the party is substituted for 
the " welfare of the people," these words of Richelieu's appear quite moderate. 
See the Testament of Louis XIV. 



214 "^^^ STATE. 

considered, however contrary the actions of the rulers fre- 
quently were. When the same Louis XIV. who had said, "I 
am the state," was at the point of death, he said, " Je m'en 
vais, mais I'Etat demeurera toujours." (I depart, but the 
state will endure forever.) He acknowledged he was not the 
state, but, at the highest, its representative, for otherwise the 
state must have departed with him. Thus, when the king of 
France died, it was customary to proclaim the death by the 
words, "The king is dead, long live the king." And what 
was this "state" which would endure forever ? Did the court 
form the state, or the nobles, or the employes, the navy or 
army, the judicial courts ? The people have always instinct- 
ively discerned, sometimes in spite of the professed doctrines, 
between the monarch with his government, and the country, 
i.e. the state. There was never yet a Frenchman, plebeian oi 
courtier, for whom the words la France, though politically 
considered, had not a very different sound from that of the 
word monarqiie or roy. The state is what the ancients fitly 
called res publica, and defined by being res communis, res populi. 

LXI. Mankind extends over so vast a space, the various 
countries have characters so different, the several portions of 
mankind stand in so different degrees of civilization, their 
wants, physical and intellectual, their taste and genius pro- 
moted or retarded by circumstances and events uncontrollable 
by them, the objects they strive for by joint exertions, their 
dangers, desires, interests and views, languages and religions, 
capacities and means, are of such infinite variety — that human 
society does not, and, according to the order of things, ought 
not to, form one state. There exist many states ; that is, man- 
kind is divided, in consequence of countless concurring cir- 
cumstances, into a number of societies, in each of which exists 
the absolute necessity of forming a state — a necessity without 
which man cannot rise higher — a necessity which is felt by all 
at all times, however different the view that people take of the 
state, or though the state may not even yet have developed 
itself in their minds as a separate idea, distinct from all other 



DIVISION OF MANKIND INTO STATES. 215 

societies. Men cannot exist without the state; men never 
have existed without the state ; for everywhere we find rights 
acknowledged, laws and rules observed, authorities estab- 
lished. The idea of law itself need not have presented itself 
very distinctly to the mind ; it may yet be in a great measure 
bound up with the personality of the authority, whom all 
obey, who commands and gives the rules ; yet even then the 
state exists in its incipient stage, because a law — although 
not of necessity a written one — which the others obey, gives 
him who is the superior, power or authority to prescribe rules 
and settle differences. So have men never lived without the 
administration of justice ; they cannot by any possibility. Yet 
there is a vast difference between the first summary procedure 
of a patriarch, and the elaborate, well-poised trial of a highly 
civilized community. Though man has never existed without 
some at least incipient manifestations of the love of the beau- 
tiful, still there is a great difference between the tattooing of 
the savage or his first uncouth idols, and the perfect beauty 
and simplicity of the Grecian Aphrodite. Does this difference 
justify us in asserting that the love of the beautiful is not 
natural in man but acquired, that there is no original aesthetic 
disposition in him ? If so, why does taste, rude, correct, or 
perverted, pervade all mankind and form one of the main- 
springs of all industry ? Men, be it repeated, are nowhere 
without the state, and this is one of their distinctions from 
the brute. Brutes nowhere acknowledge a superior or leader. 
If they follow greater force, or if many females follow one 
male, it is the yielding to physical power or the operation of 
physical laws, not the acknowledgment of superiority. It is 
the high distinction of man to acknowledge authority. 

Wherever we find men, in whatever stage of social devel- 
opment, the barbarous Patagonian, the restless son of the 
desert, the moving hunter of the prairie, the piratical Malay, 
the forlorn Esquimaux, the slavish Asiatic or the free Amer- 
ican, the submissive Russian or the manly Briton, where 
there are men, there are also rules, rulers and ruled, ordainers 
and obeyers, judges and judged, those that have power and 



2i6 THE STATE, 

those that yield obedience, chieftain and followers, princes 
and subjects, magistrates and citizens — always superiors and 
inferiors. The state is natural to man, is absolutely necessar)' 
to man. Each state carries within itself the absolute neces- 
sity of existence; not that each separate state must necessarily 
exist separately for itself, but that the people who constitute 
the state must needs live in a state, in a jural society. There 
is an absolute necessity of man's living with man in relations 
of right, of rules which guide his actions, of power to enforce 
these rules when not willingly obeyed, or of deciding where 
the rights of various individuals clash with each other — an 
absolute necessity of man's living in society and of his being 
protected therein. 

And this absolute necessity, with the power necessarily 
flowing from it over all outward relations, we call sovereignty. 
The right, obligation, and power which human society or the 
state has to do all that is necessary for the existence of man 
in society, is the true sovereign power. It is the basis of all 
derived, vested, or delegated powers, the source of all other 
political authority — itself without any source, imprescriptible 
in the nature of man. It exists by absolute necessity, and 
draws from its own self-sufficient plenitude. Since society, 
and hence the state, never ceases, and since with them their 
necessity of existence never ceases, so is the sovereign power 
never exhausted or extinct, but acts in all cases in which 
the derived or vested powers, the powers of trust, are at an 
end, it being the never-ceasing fountain and the last resort 
of all power, the "summum imperium," the "summa potestas 
nulli subjecta." The true definition of sovereignty, therefore, 
would be that it is, Prima et summa civitatis vis et potestas — 
vis^ because of its being the primitive energy of the state ; 
potestas, because of its being the ultimate and supreme, chief 
and ever-active power. It has been seen that justice in its 
broadest sense, as that which is just, is the foundation of the 
state, and its vital element ; and thus Milton is right when he 
?ays, "Justice is the only true sovereign and supreme majesty 
upon earth." (Tenure of Kings and Magistrates, vol. ii. p. 



SOVEREIGNTY. 217 

172 of Milton's Prose Works, Boston ed.) This is the true 
divine right of sovereignty. " Item author justitiae est deus, 
secundum quod justitia est in creatore." (Bracton de Leg. 
et Consuet. Angl., lib. i. cap. 3.) 

LXII. To repeat briefly the train of the argument: As 
axiom I stated, Man is made to be man, or, I am a man, 
therefore I have a right to be a man. Man cannot be man 
without society. Society cannot exist without jural relations 
between its members, because no member ought to give up, 
or can give up, his individuality. Society, considered as to 
its jural relations, or jural society, is the state. The neces- 
sary existence of the state, and that right and power which 
necessarily or naturally flow from it, is sovereignty. Sover- 
eignty derives its power from no previous or superior one, but 
is the source of all vested power. 

If a man were to ask in earnest, whence does this powei 
flow, he could only be answered by a counter-question, such 
as, whence do you derive the right of breathing ? He would 
answer, " my existence is the self-evident proof of my right 
of existence ; and in order to exist, breathing is absolutely 
necessary." The same applies to sovereignty. Absolute 
necessity gives in all cases sovereign power, namely, that 
primitive power which supersedes all other, as it is its source. 
The crew of a vessel are in a state of mutiny; the captain 
has been killed; an energetic man among the passengers 
unites the latter and part of the crew with himself; he seizes 
the mutinous sailors ; there is no possibility of subduing or 
preventing them in any other way from piratical acts. He 
tries them with the assistance of his fellow-passengers, and 
hangs them. He is right, and, provided he can prove every- 
thing as stated above, he will be justified by any court which 
decides according to strict justice and this alone. 

The French vessel La Meduse (Medusa) went in 18 16 to 
the river Gambia, and was wrecked. About one hundred and 
fifty of the crew built a raft and suffered incredibly. They 
enacted a law that any one who, unauthorized, should open 



2l8 THE STATE. 

the wine-casks, which were of infinite importance to them, 
should be thrown overboard. Some consequently were 
thrown into the sea, having opened a cask in the night 
They likewise passed a law that thirty of their half-dead 
comrades should be consigned to a watery grave, because 
they could not live long and still were consumers of the very 
small stock of provisions, which but barely kept the stronger 
ones from starvation. Without this law the remaining ones 
would have lost their chance of living.^ Provided the people 
who tried and executed the murderer Patrick O'Conner, as 
related in the Galenian of June 23, 1834 — a paper published 
at Galena, in the northwest angle of the state of Illinois — 
could not by possibility obtain in their then wilderness the 
means of trying this dangerous man, who had for a long 
time committed crimes against them, they were right in doing 
so for themselves.^" It may have been the fault of the state 
not to provide that part of its territory with sufficient means 
of administering justice; I only speak here of the supposed 
necessity under which the people labored, and the consequent 
right. 

Equally necessary with physical existence and its protec- 
tion is, as has been shown, the social existence of man, and 
consequently its insurance, from which follows sovereign 
power. This is not the place to treat of the great danger of 
resorting to this sovereign power, implied in necessity, in 
single cases, and of the enormous abuse to which it may lead, 
if wrongly applied. 

LXIII. It appears, then, that sovereignty is a power and 
energy naturally and necessarily inherent in society ; it only 



* An account of this thrilling transaction may be found in the London Satur- 
day Magazine of April 12, 1834. See also Captain Ross's Voyage in 1829 to 
1833, page 430, American edition, with regard to the opinion of the English 
public respecting his sick men, and the brave captain's indignation. 

* This very peculiar affair was reprinted, among other papers, in the National 
Gazette (Philadelphia) of July 16, 1834, which will be more accessible to many 
readers than the Galena paper. 



SOCIETY ALONE IS SOVEREIGN. 219 

exists with society, it cannot pass from it. It is the vital 
principle of the state, and any one can no more live for an- 
other than one or more can have sovereignty for another. 
The assertion that society, or the people, divest themselves 
of sovereignty and delegate it to some one else, is as contra- 
dictory in itself, and can be as little imagined, as if we should 
force our mind to suppose the trees of a forest delegating 
one tree to be green for them, or to sprout in spring for them 
— nay, more difficult, because sovereignty and state are ideas 
essentially united, one being only the attribute of the other, 
as omniscience is of God. Nor is it any more correct to im- 
agine a human individual at some period or other a sovereign 
for himself Mably said, " Man appears to me only to be a 
dethroned king." (Des Droits et des Devoirs du Citoyen, 
p. 12.) Strange kings (that is, holders of supreme power), 
without kingdoms (that is, with power over nothing). Man 
imagined without the state is merely an individual man ; but 
sovereignty is the inherent attribute of society. Had people 
always traced out the true nature of the state, and acknowl- 
edged that this alone is the state of nature for men, they 
would not have fallen on the one hand into the grave error 
of imagining each man " before the state was formed" as 
stalking about with an imperial crown on his head, and a 
sceptre for his walking-stick ; on the other, that men, forming 
a joint-stock sovereignty company, could delegate this sov- 
ereignty to any one whomsoever. Of this more hereafter. 

Society never can delegate or pledge away sovereignty, 
and, of course, never has done so. It is clear, fron? what has 
been stated before, and it will be shown by historkal evidence 
in the sequel of the work. 

He in whom rests sovereignty is called the sovereign. 
Who is it ? Who else can it be but society ? Not, I repeat 
it, by a union of millions of little sovereignties ; nor is each 
member of the state possessed of a fragment of sovereignty. 
Sovereignty has nothing whatsoever to do with the individual. 
Notions which are radically wrong never show their unten- 
ableness in so glaring a light as when reduced to plair. reality. 



220 THE STATE. 

There are about fourteen millions of people in the United 
States, of whom perhaps three millions are grown Vv'hite male 
citizens. If the people are the sovereign by a union — a con- 
glomeration of previously detached parcels of sovereignty — 
each member holds a share in the sovereignty. Now, let me 
for a moment withdraw my one three-millionth part of sov- 
ereignty, which would be my due for myself and family, and 
make use of it; for instance, let me make a one three-millionth 
part of war against a foreign power, giving up, on the other 
hand, all protection I might otherwise claim of the United 
States. I declare a three-millionth part of a war against Great 
Britain. I will not kill, I will only wage what might be 
fairly considered a three-millionth part of a war. I take for- 
cibly the purse of an Englishman; they catch me; but, in 
spite of my open declaration of war, they will not treat me 
with a three-millionth part of that consideration with which 
even a common soldier, if prisoner of war, is treated. They 
try and transport or hang me, as the case may be ; nor is 
this the worst. Not one pang of sympathy, not one voice in 
vindication of my rights at home ! Not one speaker on the 
floor of Congress, who shows that Great Britain, by disre- 
garding my fraction of sovereignty, has seriously endangered 
his! 

LXIV. Blackstone acknowledges the sovereignty of so- 
ciety, not indeed in so many words, but the relations in which 
the laws and history of Great Britain stand to each other 
forced him to state it nevertheless. The reason why he did 
not distinctly acknowledge it as a principle was because he 
would not go beyond the positive law, and indeed he speaks 
of " fertile imaginations" being requisite to furnish the cases 
of such a violation of the constitution by the king as would 
amount to abdication. But it does not require a fertile imagi- 
nation" to think over what has actually happened in history 
so many times. Still, he cannot help going at times to the 
very limits and borders of positive law. Thus, he says, "For, 
as to such public oppressions as tend to dissolve the constitu- 



SOCIETY ALONE IS SOVEREIGN, 221 

tion and subvert the fundamentals of government, they are 
cases which the law will not, out of decency, suppose." (Vol. 
i. 244.) Constitutional law has nothing to do with decency, 
but with right, and right alone. The constitution of England 
does not contemplate these cases, because positive law must 
end somewhere, and though the constitution were to adopt 
the rocoss of Poland, which was a " lawful form of insurrec- 
tion" in the former elective monarchy of that country, it 
would again remain to be decided whether there is or is not 
lawful reason for the rocoss. The passage in which Black- 
stone acknowledges the sovereignty of society is this (vol. 
i. 245) : 

" Indeed, it is found by experience that whenever the un- 
constitutional oppressions, even of the sovereign power" 
(meaning the royal power), "advance with gigantic strides 
anil threaten desolation to a state, mankind will not be rea- 
soned out of the feelings of humanity; nor will sacrifice their 
liberty by a scrupulous adherence to those political maxims 
which were originally established to preserve it. And there- 
fore, though the positive laws are silent, experience will fur- 
nish us with a very remarkable case, wherein nature and 
reason prevailed. When King James the Second invaded the 
fundamental constitution of the realm, the convention declared 
an abdication, whereby the throne was rendered vacant, which 
induced a new settlement of the crown. And so far as this 
precedent leads, and no farther, we may now be allowed to 
lay down the law of redress against public oppression. If, 
therefore, any future prince should endeavor to subvert the 
constitution by breaking the original contract between king 
and people, should violate the fundamental laws, and should 
withdraw himself out of the kingdom ; we are now author- 
ized to declare that this conjunction of circumstances would 
amount to an abdication, and the throne would be thereby 
vacant. But it is not for us to say that any one, or two, of 
these ingredients would amount to such a situation ; for there 
our precedent would fail us. In these, therefore, or other 
circumstances, which a fertile imagination may furnish, since 



222 THE STATE. 

both law and history are silent, it becomes us to be silent 
too; leaving to future generations, whenever necessity and 
the safety of the whole shall require it, the exertion of those 
inherent (though latent) powers of society, which no climate, 
no time, no constitution, no contract, can ever destroy or 
diminish." So far Blackstone. I have only to remark that 
the " nature and reason" which prevailed in the case of James 
11. is all I claim for the foundation of the state with its sov- 
ereignty, that the end of the passage quoted is the amplest 
[acknowledgment of the sovereign power of society, and that 
I prefer to call sovereign power that " inherent power" which 
is even above the power called by Blackstone and generally 
sovereign power, and shall designate the latter by a different 
name. From the next section it will appear, however, that 
this " inherent power" is ever active, and not so entirely 
** latent," and that without its action society could not exist 
for a moment. 

May I be permitted to conclude the present section with an 
extract from Hallam (Const. Hist., i. page 393), strongly sup- 
porting the view just given :^ 

" In point of fact, neither James I. nor any of his posterity 
were legitimate sovereigns, according to the sense which that 
word ought properly to bear. The house of Stuart no more 
came in by a lawful title than the house of Brunswick ; by 
such a title, I mean, as the constitution and established laws 
of this kingdom had recognized. No private man could have 
recovered an acre of land without proving a better right than 
they could make out to the crown of England. What then 
had James to rest upon ? What renders it absurd to call him 
and his children usurpers ? He had that which the flatterers 
of his family most affected to disdain, the will of the people ; 
not certainly expressed in regular suffrage or declared elec- 
tion, but unanimously and voluntarily ratifying that which in 



» * I think the best name for what is usually called sovereignty in a monarch, 
and which, according to me, is but monarchical supreme power, would hQ prin- 
cipate, not principality. We speak of the principate of Caesar ; the word bears 
?ts legitimacy within it. 



PUBLIC OPINION, 



221 



itself could surely give no right, the determination of the late 
queen's council to proclaim his accession to the throne." 

LXV. The sovereignty of society manifests itself: 

1. By public opinion. 

2. By the generation of the law. 

3. By power. 

I. Public opinion. The term is taken here in its most com- 
prehensive sense, not only meaning the opinion of the com 
munity in as far as it has been m.ade public, especially with 
regard to some specific measures, pending or adopted, but as 
the opinion of the public, of civil society, as we are apt to 
term public anything connected with the state, for instance, 
public life, public character. I understand by public opinion 
the sense and sentiment of the community, necessarily irre- 
sistible, showing its sovereign power everywhere. It is this 
public opinion which gives sense to the letter, and life to the 
law : without it the written law is a mere husk. It is the 
aggregate opinion of the members of the state, as it has been 
formed by practical life ; it is the common sense of the com- 
munity, including public knowledge, and necessarily influenced 
by the taste and genius of the community. How is it formed ? 
It is formed as the opinion of any society is formed, which 
must always consist of leaders, superior men, men of talents, 
or well-informed men, who had an opportunity to see or in- 
form themselves, and less gifted men, or less informed per- 
sons, the acquiescing or trusting ones. Not that the leaders 
prescribe with absolute power; they only either pronounce 
clearly what has been indistinctly felt by many, or they start 
a new idea, which, in being received by the acquiescing ones, 
has to accommodate and modify itself to the existing circum- 
stances. The leaders themselves are under the strongest 
influence of that sense and sentiment of the community, for 
from early childhood they live in the same relations with the 
others. Public opinion is not only an opinion pronounced 
upon some subject, but it is likewise that which daily and 



224 



THE STATE. 



hourly interprets laws, carries them along or stops their oper- 
ation, which makes it possible to have any written laws, and 
without which any the wisest law might be made to mean 
nonsense. It is that which makes it possible to prescribe and 
observe forms without their becoming a daily hindrance of the 
most necessary procedures and actions ; it is that mighty 
power which abrogates the most positive laws and gives vast 
extent to the apparently narrow limits of others ; according 
to which a monarch ever so absolute in theory cannot do a 
thousand things, and according to which a limited magistrate 
may dare a thousand things ; which renders innocent what 
was most obnoxious, and at times makes useless the best 
intended measures, protecting sometimes even crime. 

I do not indeed say that this sense and sentiment of the 
community is always right. Who will deny that it was the 
public opinion of the seventeenth century that there were 
witches, that they ought to be killed — a power which forced 
judges against their judgment to allow the unhappy beings 
to be prosecuted, however distressing the whole procedure 
might be to them ? See an instance in the Life of the Lord 
Keeper Guilford, London, 1 8 19, vol. i. page 250. But, gen- 
erally speaking, public opinion is less apt to be wrong on 
broad important questions than that of individuals, because it 
is nothing else than the result of individual opinions modified 
by one another. " I know one," said Talleyrand, according 
to De Pradt's Guarantees to be asked of Sp^in, chap, v., "who 
is wiser than Voltaire and has more understanding than Na- 
poleon himself and all ministers who ever were, are, or will be, 
and this one is public opinion." In the second part of this 
work I shall inquire into the question when a citizen is bound 
boldly to disregard public opinion, and when to submit to it 
his individual judgment; here I have to treat of it only as the 
attribute of sovereignty. 

Public opinion has abolished torture long ago in Denmark, 
yet but lately it was abolished by written law. The code of 
Charles V., still the penal law of several parts of Germany, 
prescribes most severe and frequently cruel punishments, 



PUBLIC OPINION. 225 

entirely at variance with the spirit of the age, which is but a 
different name for public opinion applied to a larger society 
and considered as to a given period. The consequence has 
been that all manuals of German penal law give the respective 
punishments fixed by the code of Charles and those which 
are awarded according to "practice." Yet this "practice" 
has never been legislatively enacted. No one according to 
law shall be present at the debates of the British parliament, 
except members. This is the positive law. There are gal- 
leries built for the public, and convenient places for reporters; 
this is the public opinion. Let any one, let the ministers, let 
the monarch, dare to insist upon that law. The British con- 
stitution, that is, the law, says that the king may veto any bill 
which has passed through both houses ; British public opinion 
prevents the monarch from making direct use of the privilege, 
at least he has not withheld his approval for now nearly two 
centuries. A law banishes all members of the Bonaparte 
family from France. Lately one of them visited the king of 
the French at the Tuileries; all the papers mentioned it. 
Why are so many things absolutely impossible, in spite of all 
the law that might be cited in favor of it? Because public 
opinion decides thus, that is, in many cases, common sense, 
which must always decide on the application of rules, whether 
they be furnished by grammar, architecture, or politics. (See 
Hermeneutics.) 

When Queen Victoria went, on December 23, 1837, to the 
lords to give assent to various bills, the clerk called out, after 
the title of one had been read, Le roi le veut (the king wills it), 
instead di La reine le veut {the queen, etc.). The clerk, accord- 
ing to the papers, did not correct himself Now, suppose 
a lawyer were to build an argument upon this bill's never 
having become a law, because it had never received the 
royal assent, there being at the time no king in England. He 
might bring most powerful arguments in favor of the neces- 
sity of observing strict forms, the more urgent the more 
important the respective spheres of action are; he might 
quote innumerable precedents of mere violated forms having 

I"? 



226 THE STATE, 

defeated otherwise legal measures ; he might bring powerful 
analogy within a hair's breadth of his case ; and yet would 
he be able to move his case one step? Every one would 
laugh, or, if not, so much the worse for the state of public 
opinion 

There is to this day a law on the statute-book of South 
Carolina, unrepealed by the authority which made it, to the 
effect that every male of age shall go to church well armed. 
The dangerous state of the country at the time required it 
against the Indians. Suppose a conscientious citizen were to 
appear in church with a brace of pistols, cutlass, and rifle. 
The whole community with one voice would set him down 
as deranged, he would lose all public confidence, and would 
most materially injure his family, besides disturbing public 
worship. Suppose, on the other hand, any public officer were 
to take it into his head to fine a citizen for not having ap- 
peared well armed in church, according to the old law. Would 
he not be scouted by judge, jury, people, by every one ? And 
the law does stand repealed by the irresistible sense and sen- 
timent of the community. This does by no means preclude 
cases of strict adherence to an obsolete law for the very pur- 
pose of drawing public attention to it and of effecting a final 
implicit expression of repeal by public authority. For laws, 
though obsolete, and universally acknowledged to be so, may 
still be of a character which renders them either dangerous 
or inconvenient in special cases. Or they may, in their char- 
acter, be iniquitous, and the public morality may demand their 
erasure merely on the score of public propriety, decorum, or 
morality. 

Public opinion, in this wide sense, is the continued sover- 
eign action of society, and also the link between society at 
large and the state, when a given society is either narrower or 
wider than a given state. 

We are apt to believe that, from the want of publicity, ab- 
solute states are not ruled by public opinion. It is true that 
public opinion does not act upon so many subjects, but it is 
in Asia as powerful as in Europe, on those subjects on which 



PUBLIC OPINION. 



227 



J. acts at all.^ Let an Eastern monarch attempt anything 
against the opinion of his people at large, — for instance, attempt 
public irreverence against the Prophet. The king of Denmark 
was, by the fundamental law of 1660, absolute in every way. 
The fancy of a man brought up in a constitutional countrv 
cannot invent a law which provides in so detailed a manner 
for the monarch's being above all law, and that nothing what 
soever shall ever be binding for him or limit his power, not 
even he himself So far the theory or the letter; but was the 
Danish king really at liberty to do what he liked? Suppose 
he had attempted so mean a thing as the prohibition of the 
Danish national dish, called grit : would his absolute power 
have supported him ? Theoretically, the king of Prussia was 
absolute when he ordered his minister, by cabinet order of 
July 18, 1798, to lay certain proposals of a union between 
Lutherans and Calvinists, before the public, and report to 
him, " when public opinion has decided upon their expedi- 
ency," etc. March 25, 18 13, the emperor of Russia and the 
king of Prussia issued a proclamation, which contains this 
passage : "Their majesties expect a faithful and complete co- 
operation of every German prince, and they are pleased to 
suppose that none will be found among them ready to be and 
remain a traitor to the cause of Germany, so that thereby he 
should deserve to be annihilated by the power of public opin- 
ion and the force of arms, which have been taken up" (against 
Napoleon). 

At times we see a man apparently act directly against 
public opinion. Richelieu saw the enormous extent to which 



X * « The emperor — the theoretical father of his people — does not find it so 
^2&y openly \.o impose new taxes as his necessities may require them; and his 
power, though absolute in name, is limited in reality by the endurance of the 
people, and by the laws of necessity." Davis, Chinese, vol. ii. p. 428. 

Guizot, in his History of Civilization in Europe, says that public opinion was 
stronger under Louis XIV. and Louis XV., and exercised more influence upon 
government, than at any previous period, yet at none had all the direct and offi- 
cial means by which the people can exercise any authority more completely been 
cut off. It impelled government more strongly than when the estates existed or 
the parliaments interfered in politics. See his Lecture VI. 



228 THE STATE, 

duels were then carried in broad daylight. He dared to exe- 
cute according to law two noblemen (Bouteville and Chap- 
pelles) for this offence. The whole society seemed vehe- 
mently opposed to him, nor would he have been able to carry 
his point, had it not, after all, in a still larger society been felt 
that he was right. It is one of the greatest traits of a noble 
citizen to be able to see one layer of public opinion through 
another, or, if he does not see it, to trust in God that it must 
be there, and act accordingly. 

Napoleon, a good authority as to the practical operation 
of public opinion, said, " Public opinion is an invisible, mys- 
terious power, which nothing can resist; nothing is more 
movable, more vague, more powerful ; and, capricious as it 
is, it is nevertheless true, reasonable, just, far more frequently 
than one is apt to think." (Las Cases, Memorial, vol. i. p, 
452, edit, of 1824.) 

LXVI. 2. Law, from the Anglo-Saxon Lagu, legu, that 
which is laid down, settled,^ is a rule of action with binding 
force, or law is a (general and) binding rule respecting effects 
to be produced by certain agents. These agents may be phys- 
ical or moral. Laws which refer to the former are called laws 
of nature, inasmuch as we imagine the principles of the phys- 
ical changes prescribed by the authority of the maker. Laws 
respecting moral agents determine human will as a free power 
of rational beings. They ought to be obeyed, but may be dis- 
obeyed. If these laws relate to the outward actions only, they 
are jural laws [leges juris) ; if they relate to the internal assent, 
depending upon man's motives, they are laws of virtue. If 
we call the first, principles the latter, commandments ; we 
may call jural laws, simpl). /aws. We have to do here with 

* Swedish laga, in ancient Low-Saxon lage, connected with German legen, the 
English to lay, lay down, which goes through all Teutonic and many other 
idioms. (See Adelung, ad verb. Legen.) The German for law is Gesetz, that 
which has been set, settled, set down. The Dutch is Wet, from weeten to know, 
of the same root with the English to wit, that which is known, acknowledged. 
The old Frisic, a, e, ewa. See likewise yus in Ramshorn's Latin Synonymies, 
vol. ii. p. 125. 



LAW, 



229 



these alone, and I shall designate them by the simple term 
law ; using, however, for the present, the word in its most 
comprehensive sense, that is, for all rules which direct with 
binding power, no matter whence it arises, our jural actions, 
or actions relating to right. In as far as laws are rules ac- 
knowledged (sanctioned, authorized) by the state, that is, pub- 
licly by society, no matter in what manner, whether by dis- 
tinct legislative action or by gradual recognition, for instance, 
by repeated decisions of some proper authority, law is public 
will. In many cases the line where public opinion passes 
over into public will is distinct ; in some cases public opinion 
is so strong, decided, and binding, respecting some specific 
subject, that the line cannot be so distinctly drawn. At other 
times some law distinctly says, or it has been settled by cus- 
tom, that well-settled usage, which is but a species of public 
opinion, shall be law. That public opinion, taken in the sense 
in which it has been used in the previous section, and law, 
must approach to each other in many cases very closely, is 
clear from their very nature. The process of public opinion 
passing into public will is in many cases imperceptible. The 
question now is. What are these rules which determine man's 
jural actions and serve to others as rules in judging of them ? 
They are the following : 

Nature and necessity. 

Common sense. 

Custom and usage (the unwritten expression of public 
will), either in any branch of practical life, or in judicial 
matters themselves, and, again, either existing, but as yet 
not specifically acknowledged by authority, or distinctly 
acknowledged, which becomes the 

Common Law of the land. 

Fundamental laws, charters, organic laws ; they gen- 
erally rest largely upon custom : hence the oath of mon- 
archs to administer the government according to law 
and custom. See Hermeneutics. 

Written constitutions. 



230 THE STATE. 

Codes of other countries, which have force by the 
respect paid them, as the civil code of ancient Rome in 
many countries in cases on which the domestic law is 
silent. 

Statute law. 

Any other enacted law 

Decisions. 

Precedents of any other sort, as repeated measures. 

Overruling decisions. 

Interpretation. 

Authentic interpretation. 

Codes, digests. 

LXVII. It is easy to see from this list what classes form 
the great bulk of Laws, of which again infinitely the largest 
part emanate from society and are enacted by society, inas- 
much as the wants, sense, and sentiment of society demand 
it, and nothing can resist it. Lord Somers, the distinguished 
Lord High Chancellor of England under William III., de- 
clared that he knew of no good law, proposed and passed at 
his time, to which public papers had not directed attention. 

Perhaps it is necessary to say a word respecting one large 
class — namely, codes and written constitutions. They cer- 
tainly seem to be distinctly enacted, given to, not made by, 
the people. A monarch, for instance Frederic the Great, 
promulgates such a code. First, did he make it, or was it 
digested by a variety of committees, composed of men who 
brought with them nothing more nor less than what they had 
acquired through life by the study of the laws of the land, 
and again from teachers, by practice, and under the hourly 
influence of society itself? They could not by possibility 
bring with them anything else. How shall a man act to re- 
move 'Kxm^oS.i extra societatem ? Some laws were enacted in 
the code, which could not maintain themselves, and they were 
changed. Secondly, what is codification ? Not the spinning 
of a thread from out the solitary brain of an individual. It is 
the collection, condensation, systematizing, and reconciling 



LAW, 231 

of what is scattered or contradictory; all that in a code which 
is not conformable to the spirit of society must fall to the 
ground. Men like Solon and Lycurgus did not make consti- 
tutions, like Condorcet, but rather collected them. This does 
not contradict the vast power of a great mind exercised over 
his community. That the latter acquiesce in or support what 
he proposes or does, belongs likewise to the sense and senti- 
ment of the community; and they will not, cannot acquiesce, 
except where that great mind acts out, completes, develops, 
and elevates, without making the rash attempt to establish 
something absolutely foreign and heterogeneous. Even for 
engrafting a nobler branch we want some kindred tree. There 
is hardly such a thing as judge-made law, but only judge- 
spoken law. The doctrine pronounced to-day from a bench 
may, indeed, not be found in any law-book; but the judge 
has ascertained and declared the sense of the community, as 
already evinced in its usages and habits of business. If he 
has not expressed it correctly, society will show its sovereign 
power ; his decision will be reversed to-morrow or corrected 
by a statute. 

In fact, a doubtful decision is not unfrequently followed by 
a statute, either affirming or overruling it, as the judge may 
have succeeded or failed in expressing the public opinion. 
For example, the British public in Queen Anne's time were 
in favor of permitting the indorsee of a promissory note to 
sue in his own name. The judges ruled that it was contrary 
to the doctrines of the common law. Whereupon the public 
will to the contrary was declared in the statute of Anne. In 
former times a heathen could not be admitted as a competent 
witness, because he could not appeal to the God of the Chris- 
tians. It was law, because a general and binding rule. Now 
this view is exploded ; his conscience is appealed to through 
the solemnities of his own religion. And this is law, because 
a general and binding rule. Who enacted it ? Society, by 
its power sovereign to all others. If the judge is not the true 
exponent of public opinion, be it that he misrepresents it, or 
that he truly administers the law, which law, however, is 



232 THE STATE, 

against public opinion, the latter will prevail, as has been said, 
by way of a new statute. A very curious case of this sort is 
within the memory of all of us. In England, in i8j8. the 
trial of wager by battle was claimed by the appellee wh*. was 
proceeded against by a writ of appeal, after having been ac- 
quitted of murder upon an indictment. The final judgment 
of the court was not given, as the appellant declined exposing 
his life in the contest, and prayed no further judgment of the 
court, and the appellee was discharged. (Thornton v. Ash- 
ford, I Barn. & Aid. 405 ; 3 Chitty's Blackstone, 337, n.) This 
appeal, which was held by the court to be warranted by the 
existing law, gave occasion for the statute of 59 George III. 
c. 46, passed 23d June, 18 19, and which completely abolishes 
this mode of trial by single combat. 

It is a very great mistake to consider the gradual changes 
of the law and its deviations of to-day from what it was a 
century ago, without the public action of a legislature, as being 
abuses which have crept in. It is society which demands these 
changes, and effects them ; it is these changes, according to 
the changes of things, in every country more important than 
the public enactments, which are partly but the consequence 
of the effected changes, partly receive value and life only by 
the change of the sense of the community, that make it pos- 
sible for society to last. Or ought the German jural society, 
for the love of written law, to have continued all the revolt- 
ing cruelties of the penal code of Charles V., despite the 
essential change of the whole nation ? 

We have not to inquire here whether a monarch theoret- 
ically stands above the law or whether princeps legibus solutus 
est; we shall return to this point. Here we have only to 
inquire, does any monarch, ever so absolute in theory, feel 
himself in any degree free from the vast bulk of the laws of 
that society over which he rules ?^ Where is the question 



* * We need not refer to free people only. It is a popular maxim of the Chi- 
nese, and one frequently quoted by them, that " to violate the law is the same 
crime in an emperor and in a subject. This plainly intimates that there are cer- 



POWER. 233 

more earnestly discussed, day after day, what may be done, 
and what cannot, than in the palace of the absolute monarch? 
How many thousand irksome things must not a monarch 
submit to for no other reason than because it is the opinion 
of the society of which he forms a part ! Why is, as Euno- 
mus said, " the little finger of the law heavier than the loins 
of the prerogative"?' What gives in all free countries such 
mighty meaning to the word law, and the more so, the more 
a country advances on the path of civil and political develop- 
ment ? It was not without a deep meaning that, with reference 
to the late interesting case of Stockdale v. Hansard, the printer 
to the Commons, some British papers (June, 1837) headed the 
article, in which they gave Lord Denman's decision, which is 
against the printers for having published, under the direction 
of the house, certain documents containing a libel, " The Law 
versus the House of Commons." (See Am. Jur., No. 38, July, 
1838.) The whole case belongs to the series of cases which 
are of historical importance, because representing and em- 
bodying a great principle, gradually developed by the strug- 
gles of many centuries.'^ 

It may indeed be convenient in respect to some single meas- 
ures to claim the absolute power of a monarch ; but who will 
be bold enough to say that a monarch is not more subject, 
owing to the greater publicity and importance of his actions, to 
the fundamental laws and framework of society than others? 
The words of Coke, in the memorable debate. May 12, on the 
right of the king to imprison a subject, previous to the passage 
of the Petition of Right, that " Magna Charta is such a fellow 
that he will have no sovereign" (Rushworth, vol. i. pp. 562- 
579), contain a great truth a-nd express what has been stated. 
The law comes from society, and therefore is powerful over 



tain sanctions that the people look upon as superior to the will of the sovereign 
himself. These are contained in their sacred books, whose principle is literally 
salus populi SMprema lex.^^ Davis, The Chinese, i. 25. 

» "Wynne, who wrote about the middle of the last century. 

" [See the account of Stockdale's actions for libel, etc., in May, Const, Hist. 
of England, i. 423--427.] 



234 



THE STATE. 



every one. That which strikes the senses most is generally 
considered the most important, and hence the dehision that 
he who proclaims the law or completes it by affixing his ap- 
probation is considered as the most important authority in 
generating the law. Yet his approval is powerfully influenced 
by society again, and how very small is that number of laws 
or bills over which the supreme power exercises a more abso- 
lute control, compared to the immense bulk of all those 
which are generated by society and form in every state the 
groundwork for the regulation of all laws ! Does not all the 
law of a nation rest on usage ? Must it not ? 

The same remark applies to revolutions. There are few 
revolutions indeed which enter so deeply as the first French 
did. Because the chief of the state changes, or his dynasty, 
we are apt to believe that a total change of things has taken 
place. Yet that which remains is incalculably vaster than 
that which is changed ; that is, society with its laws remains 
master. The English revolution was not without essential 
changes, but if we consider how much remained of all laws 
which regulate the daily and therefore most important inter- 
course between man and man, we shall see at once that the 
changes are but a minimum. 



LXVIII. 3. Power. — Where can possibly power be except 
in society? The question here is not even whether it is right 
that it is so, whether it ought to be so, but how else by 
the mere idea which the word power designates, sovereign 
power, power above all other power, can be imagined, except 
in society. Monarchs, a part of society, have of themselves 
but arms and feet like other men-; and physical power, such 
as armies and navies, still more that power which they exer- 
cise by moral agents, must of course be lent them ; that is, 
society forms the power, and may use it for one or the other 
purpose. Whatever opposes the power of society must yield ; 
whatever society insists upon is carried, "by parliament, 
through parliament, or over parliament," as Mr. Macaulay, in 
the memorable debates of 1832, said of the Reform bill. Nor 



POWER. 235 

does society ever cease to consider itself as the object of itself 
— which is what I called the self-sufficient plenitude of sov- 
ereignty — and all its parts or separate functions, however ele- 
mentary the character of their authority may be declared by 
the fundamental law, may vanish and yet not take anything 
from the sovereignty of society, which is natural, inherent, 
unavoidable, and imprescriptible, not made, granted, declared, 
or arrogated. 

When the king of England was declared to have abdicated, 
which is nothing but an expression of constitutional termi- 
nology, or a fiction, in order not to use the harsher or to avoid 
debates on the plainer term of dethronement, the lords and 
commons did not believe British society had thereby lost any 
particle of its sovereignty, but they began the preamble of the 
Declaration of Right with the words, "Whereas the lords 
spiritual and temporal, and commons assembled at West- 
minster, lawfully,/////^, and freely representing all the estates 
of the people of this realm," etc. Now,- it is quite impossible 
that the lords and commons can represent the king according 
to the constitution ; but they can, according to that which is 
above even the fundamental law — the sovereignty of society. 
So, whenever the commons are at variance with the lords on 
a point on which the former have distinctly formed their 
opinion and speak in the name of the country, the latter must 
necessarily give way, simply because the country or society 
has the power. The lords are a wise institution, under the 
law, but society is that which prescribes the law. Subjoined 
the reader will find a statement which is as true as it is inter- 
esting, coming as it does from a minister of the British crown 
himself^ Take on the other hand the case of an absolute 



* If the papers of the time have reported correctly, Lord John Russell, one of 
the ministers of Queen Victoria, said to the electors of Stroud, soon after his elec- 
tion, in the month of September, 1837, " At the revolution in 1688, the decision of 
the house of lords was, that James the Second should continue upon the throne, 
and that certain persons should be chosen to exercise the regal power in his name. 
The house of commons, on the contrary, declared the throne vacant. There- 
fore, had the house of lords persevered in their decision, a civil war must have 



236 THE STATE. 

monarch who becomes wholly unable to rule — by derange- 



been the result. But the lords, knowing their duty to the country, finding the 
house of commons determined, gave way, and William the Third was placed 
upon the throne. From that day to this, whenever the house of lords has fitly 
understood its duty, it has controlled what was hasty in the commons — has 
amended what was imperfect — discussed and matured what was not sufficiently 
considered ; but whenever the house of commons, speaking in the name of the 
country, have formally declared their opinion upon a certain topic, the house of 
lords has not made itself a resisting body to that opinion. On two occasions it 
did so, but only for a very short time. In the reign of Queen Anne the policy pur- 
sued by the ministry with respect to foreign affairs was contradicted by the house 
of lords ; but Anne immediately redressed the evil, and by the exercise of her 
prerogative quickly compelled them to agree with the house of commons. On 
the second occasion, a measure, supported by a vast majority of the people in 
every part of the country, was rejected, as essentially mutilated by the house of 
lords ; but Lord Grey immediately took stringent measures to remedy the evil, 
and, although his proposition was not immediately accepted, the lords shortly 
afterwards gave up and retired from the proposition they had previously made. 
This is the real duty of the house of lords, according to the constitution of the 
country, and I trust that in the end they will become fully aware of it. At the 
same time it must be acknowledged that among the various alterations, among 
the various corruptions which were introduced into our constitution by tory min- 
isters, %vho reigned supreme for upwards of fifty years, must be numbered that of 
pouring into the house of lords such a flood of persons of their own political 
opinions as to render that assembly the representative of a particular party 
rather than a sound constitutional body. I believe I am hardly exaggerating when 
I say that in the course of fifty years, in one way or another, sometimes by elec- 
tion, sometimes by nomination, sometimes by partiality in the creation of peers, 
not less than two hundred persons have been added to the house of lords. Of 
course the introduction of so large a mass of individuals, all belonging to one 
party, has in some respects changed the ,character of the house. But, what- 
ever the amount of that change may have been, it has not entirely altered the 
sense which has always been entertained in the house of lords, that when tlie 
commons pronounce a decided opinion upon a great question, the opinion of the 
lords ought immediately to follow." So far Lord Russell. 

" Whatever may have been the right of the nobility and clergy to attend in 
cortes, their sanction was not deemed essential to the validity of legislative acts." 
Prescott's History of Ferdinand and Isabella, 2d ed,, Boston, 1835, page xlix., 
Introduction. 

* On the other hand, in 17 19, when Sunderland, Somerset, and others were 
anxious Id get the Limitation bill passed, in order to keep the house of lords, 
after a few creations, from any further increase, Walpole said that " in all dis- 
putes between the lords and the commons, when the upper house is immutable, 
the lower must sooner or later be obliged to recede." It was at this time that 



POWER. 237 

ment, for instance.' The heir presumptive declares himself 
regent, or monarch, and he is acknowledged as such. Any 
one who opposes his authority is treated as guilty of treason. 
On what ground ? Because the heir declared himself such ? 
His declaration cannot be the foundation of his right, because 
when he made the declaration he was not yet monarch, and 
therefore had no right to do so. Because the heir has the 
power to do so ? That would be founding his whole right 
in force alone — it would be revolution declared permanent. 
Because the monarch is unable to rule ? But who says so ? 
The heir ? There is no law which gives him the right of 
doing so ; it would be a power above the supreme power of 
the monarch. His right can only be founded in the fact that 



the commons most strenuously opposed the intention of the king to divest him- 
self of the privilege of creating peers. [From Dr. Lieber's notes, abridged. 
Comp. Hallam's Const. Hist., iii. 319, May's Const. Hist., i. 225.] 

* * So, when the commons in 1788 had ascertained that George III. was de- 
ranged, Pitt moved three resolutions, in the second of which the same words are 
used, namely : " That it is the opinion of this committee that it is the right and 
duty of the lords spiritual and temporal and commons of Great Britain now as- 
sembled, and lawfully, fully, and freely representing all the estates of the people 
of this realm, to provide the means of supplying the defect of the personal exer- 
cise of the royal authority, arising from his majesty's said indisposition, in such 
manner as the exigency of the case may appear to require." Tomline, Mem 
of Wm. Pitt, vol. ii. p. 407. 

And in the discussion upon this resolution Pitt used these momentous words, 
when Fox claimed the right of regency for the prince of Wales, as eo ipso 
belonging to him : " It was a right which could not exist, unless it were capable 
of being expressly and positively proved ; whereas the right of parliament was 
that which existed of course, unless some other right could be proved to exclude 
it. It was that which, on the principles of this free constitution, must always 
exist in every case where no positive provision had been made by law, and 
where the necessity of the case and the safety of the country called for their in- 
terpretation. The absence of any other right was in itself enough to constitute 
the right of the two houses ; and the bare admission that the right of the prince 
of Wales was not clearly and expressly proved virtually operated as an admission 
of every point which he wished to establish." Tomline, as above, p. 419. 

See also Pitt's opinion upon the statutes in 13 Charles II., declaring that the 
two houses cannot act without the king, as evidently meaning when there is a 
king to act. (As above, p. 471.) The whole important debate is but one com- 
mentary upon the sovereignty of society. 



238 THE STATE. 

he is supported by society, whom common sense teaches that 
a deranged monarch ought not to rule, and whose opinion, 
therefore, either shown publicly and directly or by acquies- 
cence, gives him the right. He draws it from the sovereignty 
of society, which in the nature of things overrules everything 
else, and has done so as long as history remembers facts. 

LXIX. Government is that institution or contrivance 
through which the state, that is, jural society, acts in all cases 
in which it does not act by direct operation of its sovereignty 
as mentioned above ; or, in other words, government is the 
aggregate of authorities with all that is directly controlled by 
them. It derives its power from the sovereign power of the 
state — that is, I repeat it, from the necessity of the existence 
of society. Governments have been frequently changed, dy 
nasties which wielded the supreme (not sovereign) power have 
been supplanted by others, or by republican governments. 
Now, has the displaced government ever taken with it the 
sovereign power ? that is, has the nation, or state, left behind, 
become incapable of providing in every way for itself from 
its own self-sufficient or sovereign power ? If the sovereign 
power rests in some one or something else than the state, then 
we have in the latter case two sovereign powers, which is 
absurd. 

How many governments has the world seen within the last 
fifty years in France ! Yet has France, the French state, that 
is, the jural society composed of all the French, ever ceased 
on that account ? Was France in England when Louis XVIII. 
resided there, or England in Holland when Charles 11. resided 
in the United Provinces ? The following words of Erasmus, 
who surely was no revolutionist, apply to governments in 
general, and we must remind the reader here again of what 
was alluded to before, that to the unobserving the whole 
government seems to be changed when the dynasty only is 
changed, or the whole state seems to be changed when gov- 
ernment only, perhaps nothing more than the executive with 
a few institutions, has been altered. Erasmus says (Instit. 



ORIGIN OF GOVERNMENTS. 



239 



Princ. Christiani, vol^ iv. p. 566, F, Leyden ed., 1703), "SI 
torques, si sceptrum, si purpura, si satellitium regem faciunt, 
quid tandem vetat pro regibus haberi tragoediarum histriones 
qui iisdem ornati prodeunt scenam ?" 

LXX. Governments may be established by a distinct con- 
scious action of society (see farther below on Majority and 
Minority), and pronounce the right to change it whenever that 
society deems proper, as is the case in the United States. It 
must not, however, be forgotten that even in this case the 
state is not formed by a voluntary joining of previously en- 
tirely independent elements. Who settles first that such or 
such a convention shall be held, or that its decrees shall be 
binding ? The state, that is, the society, exists already with 
millions of jural relations and laws ; and the very government 
which is newly established springs from and rests upon the 
previously existing relations of right. The radical error by 
which government and state are confounded has led to many 
very serious misconceptions, of which the chief is that which 
relates to the origin of the state, and to consequent obliga 
tions of its members. Men have been obliged to resort to a 
variety of fictions. Thus, Rutherforth, who merely copies his 
predecessors, says (Instit. of Nat. Law, book ii. chap, i.), "A 
society is a number of men united together by mutual con- 
sent, in order to deliberate, determine, and act jointly for some 
common purpose" — thus designating only what we have 
termed an association, which, as has been seen, does not apply 
to the state, for when was this mutual consent pronounced ? 
Is Russia not a state? Yet there is indeed no deliberation. 
Much as we may disapprove of many acts of the Russian 
government, no one can deny her to be a state. Rutherforth 
then endeavors to make out that acts of the whole are bind- 
ing upon each, and, without argument or proof, he passes over 
from the whole to the majority, in this way : ** Whatever is 
determined by the whole or by the greater part." This is not 
establishing rights. There are a few cases in history which 
approach very much to the above presumed formation of the 



240 THE STATE, 

state, as that of the Providence colony, of which more will 
be said, but they are extremely rare cases, and besides do not 
solve the question of sovereignty inherent in society, by the 
political fiction of mutual agreement. The state is natural, 
necessary, uninvented. 

Or the government has grown up within the society with- 
out any specific act of rebeginning, but by many distinct 
expressions or acknowledgments of its most essential features, 
or with the distinct acknowledgment of certain mutual rela- 
tions between the government and the state, as is the case in 
England. With regard to the latter, I instance the act of 
settlement or bill of rights. 

Or the government has grown up within the society with- 
out any public and definite expression of its relations to the 
state, and has perhaps itself greatly co-operated to form that 
state, and receives the support of the people, as is the case in 
Prussia. 

Or the government is forced upon the people, as was the 
case, for instance, with the kingdom of Westphalia, founded 
by Napoleon, and given by him to his brother Jerome ; or 
the people have never yet reflected on subjects of right, and 
live in a low state of political civilization. In the first case, 
society is the acknowledged source of power ; in the second, 
the source is more distinctly acknowledged by every act of 
the nature alluded to ; in the third, it is clear that government 
derives its power from society, which supports it, and which 
government rules in a manner to obtain this support. If the 
people were to rise against it, and to establish another one, 
the question would arise, which I have answered already in 
this paragraph. Does the government take the sovereignty 
along with it ? The change once effected, who would deny 
the new government the lawfulness of its actions ? In the 
last case, who imposes the government ? At the beginning, 
it may be an entirely foreign army, or foreign money, by which 
a sufficient party is bought to support it. But can this last 
any length of time, without at least the acquiescence of the 
people? The question always turns upon this point, Does 



ORIGIN OF GOVERAMENTS, 24I 

the state accept the government, or the government the state? 
The answer is clear. The government is obhged, do what it 
may, to adopt the immense mass of existing jural relations 
and their corresponding laws/ If we take the Barbary States 
as an example, where a soldiery recruited by foreigners rules 
with iron sway over the people, we shall find one of two 
things. Either even there the people acquiesce for the time 
in it, because they prefer this vicious government to the per- 
sonal dangers to which an attempt at change would expose 
them — and though I may have a right to do a thing, it may 
be inexpedient, and, in many cases, wicked, in consequence 
of inexpediency, to make use of the right, if I expose thereby 
inconsiderately many of my fellow-beings to danger — or the 
power of the soldiery effectually prevents all attempts at 
change. If the latter be the case, then it is a state of things 
entirely founded upon brutal force, which prevents for a time 
the sovereign power from acting, as brutal force may prevent 
almost any power from acting. Every institution must go 
through a transition-state at some period of its development. 
If an opponent were to object, " Still, is it not a state ?" I 
would say, " Hardly; but be it so, would any one, even the 
stanchest legitimist, deny the oppressed the perfect right to 
free themselves ?" Destroy that government, if government 
you can call it, and the dey, with his adherents, will not take 
the sovereign power with him, but the freed people will at 
once exercise it. All human institutions, all great ideas, de- 
velop themselves gradually, per intervalla ac spiramenta tem- 
poris, and whenever society chooses to act, it can do so, and 
has the right to provide for what is necessary for itself 

LXXI. As soon as the strictly patriarchal government 



« * In no case does this appear clearer than in conquests, and in none of these 
perhaps so palpably as in the conquest of China by the Mantchou Tartars. They 
were able, indeed, to change the costume of the Chinese, to cause them to shave 
their heads in Tartar fashion ; but observe how the Tartars became Chinese, not 
the Chinese Tartars — language, law, tradition, politics, religion, industry — of 
everything the great bulk remained. Every conqueror is swallowed up, as it 
were, by the conquered. Alexander became an Asiatic. 

16 



242 THE STATE. 

ceases, we find that the chiefs, sheiks, kings, or whatever 
they may be called, are most generally eligible, or the people 
elect them whenever they choose. Strictly hereditary gov- 
ernments, with a fixed line of descent, are but of late origin, 
gradually established by acquiescence, or according to some 
particular views prevailing at the time, e.g. that of inheritance 
in general in the feudal times. (See Palgrave's Anglo-Saxon 
Commonwealth, and Turner, History of the Anglo-Saxons, 
viii. I.) The descent of the crown by primogeniture is of but 
very late origin. The less the king became a mere feudal 
chief, and the more he came to be considered as the head of 
the government of society, in short, the more clearly the idea 
of the state rose out of the feudal system, the more the indi- 
visibility of the state became necessary, and the more clearly 
did people see that an elective monarchy is that govern- 
ment which offers, in most, perhaps in all cases, the least 
advantages of all. In Russia the czar is still held to have the 
right of appointing his successor. In England parliament 
has the acknowledged right of the settlement of the crown. 
But nowhere does history show that there is some divine 
right connected with the descent of the crown. Philip II. of 
Spain endeavored to exclude Don Carlos, his son. Was 
it a divine right in Philip to settle the succession ? Carlos, 
the pretender, in 1833, declared that Ferdinand VIL, his 
brother, had no right to change the succession; he, therefore, 
according to Carlos, cannot have been sovereign in the full 
sense of the word. Frederic William I. of Prussia contem- 
plated the exclusion of his first-born son (Frederic the Great) 
from the throne. The sovereignty cannot reside in the reign- 
ing family, because the descent of the crown is variously 
regulated by law ; this law then regulating the descent of 
sovereignty must be superior to it, it seems ; then it cannot 
be sovereignty. In some countries the crown descends from 
male to male only, in others the women are included, yet the 
elder female giving way to the younger male in direct line ; 
and when Captain Cook visited Otaheite he found that the 
law of the land was, that the king ruled, the moment a son was 



POWER IN THE PEOPLE. 



243 



born to him, merely for the latter, who assumed the govern- 
ment as he became of age, whether the father was living or 
not ; in other countries, again, the monarch is elected. 

LXXII. When the German emperor had been elected by 
the seven chief princes of the empire, called electors, he 
showed himself to the people, who were asked whether they 
would have him. After they had exclaimed. Fiat/ fiat! fiat ! 
he was crowned. This had become, of course, a mere form, 
but it shows sufficiently the original view taken of the power 
of the emperor, or the theory upon which it was founded. 
(See section lix. of this book.) Endless, indeed, would be the 
instances to show that from earliest times the view was taken 
that rulers had their power from the people, that it is a vested 
and conditioned, not a primordial power, forfeited if the con- 
dition is not fulfilled. Thus, in Aragon the formula, " as long 
as thou performest that for which rulers are appointed, and 
if thou not, we not" (^y se no, no), and that in Sweden, "we will 
remain faithful to the king, and keep our oaths, provided he 
do so," — used at the diet of Siiderkoping in 1595, — prove that 
society felt itself justified in making changes in government 
when the holders of supreme power used it to the essential 
disadvantage of society. Many persons call this the doctrine 
of revolution, because the people may often think that gov- 
ernment acts wrong, when, in fact, it acts most wisely, and 
that all stability of government, so important to society, would 
be undermined if society could change it whenever it deems 
proper. Apart from the fact that, whether pleasant or no, 
dangerous or no, such is the fact, founded in the very nature 
of things, it need only be suggested, whether indeed the 
theory that kings have a right of their own, no matter whence 
it comes, and that they do not owe their power to the people, 
is not far more revolutionary and dangerous to the stability 
of governments. People, history shows, are not so easily 
movable as individuals, nor can they be ; and where, indeed, 
is any guarantee that the monarch, a frail individual after all, 
like all the rest of mortals, will not abuse his power, nay, will 



244 ^-^^ STATE. 

not be obliged to abuse it, because he is finite and subject to 
all the influences of humanity, united with a high degree of 
power ? ^ 

LXXIII. From the foregoing it will be easy to judge in 
how far Hume was correct when he said that opinion is the 
first fouudation of all power.^ It is, questionless, true that a 
monarch of himself can do nothing ; he may effect much 
against the true interest of the people, by an army and money. 
But who compose this army ? who gives the money ? The 
first cannot be drawn together by the physical force or any 
supernatural power of the monarch, nor can the latter be ex- 
tracted from the people by any such means. Consent, from 
whatever source it may flow, is requisite ; for of himself the 
monarch is but a human individual, like any other mortal 
being, as we see at the moment when consent or support is 



* A lately-published work by Mr. Michelet, Ongines du Droit Fran^ais, con- 
tains many passages interesting in regard to the subject treated of in the above 
section. It is always pleasing to find an important theory unequivocally and 
succinctly pronounced, be it in words or symbols, and I do not hesitate to quote, 
on that account, the following passage : 

" The duke of Carinthia was not allowed to sit upon his marble throne till he 
had given money. This donation was the coemptio, the purchase of his right. 
Nowhere does the sovereignty of the people (as a sleeping abstract annunciation) 
appear more haughtily declared than in this formality. It bears the seal of a re- 
mote antiquity, of an Homeric or Biblical simplicity. The duke walked towards 
the marble throne in the dress of a peasant. But a real peasant already occu- 
pied it, attended by the sad and severe symbols of the laboring people — the black 
bull and the lean horse. Then commenced this rude dialogue. 'And who so 
proudly dares enter here ?' said the peasant. ' Is he a just judge ? Has he the 
good of the country at heart ? Is he born free and a Christian ?' ' He is, and 
he will,' answered the duke. • I demand, then, by what right,' retorted the 
peasant, ' he will force me to quit this place.' ' He will buy it of you,' was the 
answer, ' for sixty pennies, and the horse and the bull shall be yours,' etc. No less 
ancient or deeply significant was another part of the same ceremony. Whilst 
the duke brandished his sword towards the four winds, whilst he sat with his face 
to the sun and conferred fiefs, three families had a right to mow, to pillage, and to 
burn. The interregnum of the sovereign power was thus represented as the sleep 
of the law ; and the people saw in th;5 form that they must make haste to abdicate 
and to give themselves a defender." [See J. Grimm, Rechtsalt., ist ed., p. 253.] 

2 Essay IV. of the First Principles of Government. 



FOUNDED ON OPINION. 



245 



withdrawn, if any doubt could exist. A state may, indeed, 
for a long time, be organized like a man-of-war, on board of 
which the marines are used to keep the sailors in due order, 
and to watch over them if in irons, and the sailors must keep 
the marines subdued should they become mutinous. But what 
could the captain and all the officers effect, if at heart the 
crew's opinion were not with them ? Would they not be 
thrown overboard ? If, however, by opinion we mean some- 
thing of which we are clearly conscious, in this case an 
avowed and positive assent, and not only the absence of dis- 
sent, the expression is not so correct. States exist long before 
men come to a clear perception of the character and neces- 
sity of the state, as we have seen, because they cannot live 
without right, without law. Be it, however, granted that 
opinion is the first foundation of all power, it remains still 
to be explained whence opinion receives the authority to 
establish that power. Opinion is the support of all vested 
or secondary power, and a mighty one indeed, as has been 
seen, it is of itself But the first source of all power is 
sovereignty. 

LXXIV. Had the terms state, government, sovereignty, 
supreme power, and other important ones in political termi- 
nology been always used with precision, or had it been possi- 
ble, according to the existing stages of civil progress, strictly 
to discriminate them, far less dispute with regard to the true 
source of power would have afflicted mankind. Attention is 
first attracted by outward, prominent marks, and the supreme 
power may well be called the prominent, outward mark of the 
state. It was natural, therefore, that this should be frequently 
taken for the sign, attribute, and essence of the state, and that 
great confusion should exist respecting the persons who 
wielded this power, the power itself, and the state for which 
it is wielded. But if the government is not the monarch, the 
monarch not the state, if " the state will endure" though Louis 
XIV. may die, it clearly follows that sovereignty is an attri- 
bute of the state, not of the monarch. Many circumstances 



246 THE STATE. 

have contributed to increase the confusion, even the origin of 
the word sovereign. Sovereign (from the French, a word to 
be found in all the idioms of Latin origin, as if from superanus) 
meant, originally, highest, excellent, and was the same with 
supreme.' It was applied therefore to the monarch, as 
highest, chief, especially in the feudal times, when the king 
or prince was not monarch in the sense in which we take the 
word, but the chief one, the leader, frequently the primus intef 
pares. Thus, prince, from prificeps, the first, chief one, the 
German Fiirst (which meant originally what the English fi7'si 
now signifies, and is the superlative of vo7% pronounced fore^ 
the English before, meaning therefore the foremost, the high- 
est, so that actually in the ancient Mirror of the Suabians, a 
collection of Suabian law, chap, cxv., Prijtceps and Furst are 
explained by voi'derst, i.e. foremost), the Swedish Forste, Dan- 
ish Fyrste, and Dutch Vorst, all lead to the same original 
idea. The meaning was plain and simple, just as dux or duke 
and Herzog, without any mysteriousness as to the extent or 
origin of the power. Religion, as embodied in the church, 
and not only as the spiritual life of the individual, being the 
main moving principle of the middle ages, and penetrating 
every form and substance, became the cause that ideas drawn 



'Thus, we say still, "sovereign contempt," "a sovereign remedy." The 
French Dictionary of the Academy gives the following definition of souverain : 
ce qui esf att plus haut point en son genre. It speaks of souveraint6 absolue, 
limit^e, h6r6ditaire, etc. Consequently, it means nothing but supremacy, supreme 
power. The Nouveau Dictionnaire universel des Synonymes, etc., by F. Guizot, 
]^aris, 1833, distinguishes between souverain and suprime, that the idea of power 
belongs to the first, and of any elevation to the highest degree to the latter. 
" God," it says, "is the supreme being, since he is the being by way of excel 
lence and by essence ; he is the sovereign lord of all things, inasmuch as he is 
almighty and author of all things." The ancient parliaments in France, the 
highest judicial courts, were called cours souveraines. There existed in Holland, 
in the fifteenth centuiy, certain societies of poets, or, at least, rhymesters, then 
called rhetoricians. Philip the Handsome united the various societies or " cham- 
bers," in the year 1499, and appointed a chamber of fifteen, called " Jesus with 
the Balsam Flower," as " sovereign chamber," and the chaplain of the prince 
was made its "sovereign prince." Van Campen's History of the Netherlands 
Hamburg, 1831, vol. i. p. 317- 



THEOCRACY. 247 

from the Bible were carried over to the crowned heads of 
Christianity. They came to be called the anointed of the 
Lord, as the kings of Israel were.^ The essential character 
of the Israelitic government was theocratic, and it seems that 
Moses was not desirous of establishing a monarchy (Deut. 
xvii. 14-20). But, the theocratic government having almost 
entirely decayed after Joshua, the people asked Samuel to 
give them a king. He yielded with great reluctance (i Sam. 
viii. 5-22). The king, being called to the crown by theocratic 
choice, was considered the vicegerent of Jehovah, yet his regal 
authority was limited by the terms of election, the ancient 
liberties of the people, and the constitution of the tribes.* 
These theocratic peculiarities found, as far as the altered 
state of things admitted, a ready reception, and though the 



« * With this view of inherent legitimacy is connected the superstition of the 
monarch's curing by touch. In France the formula was, " The king touches thee, 
God cures thee." 

2 Manual of Hebrew-Jewish Archaeology, by W. M. L. de Wette, D.D., Prof, 
of Theol. in the Univ. of Basle, 2d ed., Leipsic, 1830, division Royalty. The 
Bible, if not taken as a book of religion and history only, may very naturally be 
abused to prove anything and any theory. It is always so when we confound dis- 
tinct spheres. The solar system, with its many stars, has been used to prove 
monarchy, nobility, and people to be an order of things founded in nature. From 
the passage in Luke xxii. 38, " Domine, ecce gladii hie duo : ille autem dixit 
eis. Satis est," it was proved in the middle ages that the two powers, the pope 
and the emperor, must rule over all Christendom. There is nothing that cannot 
be made to support anything, if we once resort to what I have called, in the 
Hermeneutics, ex post facto interpretation. Every sort of government has been 
recommended as the most pleasing to God, because founded upon or copied from 
the Bible, from the theoiy of the divine right of monarchs to the harshest demo- 
cratic extravagance. Nor have the aristocrats remained behindhand. Scheele, a 
Dutch nobleman, in the middle of the seventeenth century, supported his defence 
of aristocratic government, in his two works De Jure Imperii and Libertas Pub- 
lica^ as much by passages of the Bible as by political reasons. Who does not 
know the contradictory results in politics at which the various parties during the 
Englisn revolution arrived, always deriving, as they pretended and sometimes 
sincerely thought, the truth of their theories from the Bible ? We might with 
equal justice derive our penal law, architecture, or the theory of any science or 
art from it. I have already on former occasions referred to Archbishop Whately's 
remarks respecting this unhallowed abuse of the Bible, in his Introductory Lec- 
tures on Political Economy, London, 1831, page 29, et seq. 



248 THE STATE, 

supremacy of the church and absence of national churches 
did not allow the idea of the monarch's responsibility to be 
extinguished, yet some most extravagant ideas grew up. 
Charles IV., emperor of Germany, declared that the souls 
of princes are better endowed by the Lord than those of 
common people, and that, too, when he recommended so un- 
worthy a subject as his son Wenceslaus to the princes to be 
elected as his successor. The anointing of monarchs was 
believed by many to establish a more direct communion with 
the Deity. Indeed, there is no accounting for the strange 
views to which people may be led. Pope Alexander VII, 
preferred to promote persons of good birth, because he 
thought that as princes of the earth like to be served by in- 
dividuals of high families, it must be likewise pleasing to the 
King of kings to be served by priests already by their blood 
above the rest of men. (Ranke, Die Rom. Papste, book viii. 
§ lo, vol. ii. p. 194 of Amer. ed. of Austin's translation.) 

When whole kingdoms, however, had become Protestant, 
the Jesuits, for the first time in history, distinctly pronounced 
the sovereignty of the people. We shall see how they were 
led to it. It was now for the Protestants to claim the entire 
independence of monarchs, and in some cases they went to a 
most extravagant idea of divine right. The idea that wher- 
ever there is an established church it ought to be under the 
superintendence of the state, else it would be in reality a 
state within the state, and a contradiction in terms, for who 
establishes ? certainly the state, by which is given already 
the foundation of the relation in which both must stand — led 
the Protestant monarchs to declare themselves the heads or 
supreme bishops of their respective national churches. It led 
them to do it, though it is by no means necessary. This, 
together with the gradually vanishing power of the pope, as 
the national governments rose in importance and power, and 
as the stream of civilization, industry, and consequent strength 
passed from the southern European nations to the northern, 
was a cause of a new theory of the divine right of kings, 
»nd unlimited power, which from the times of Filmer and 



SUPREME POWER. 249 

Wandalin down to but recent periods has been, at times, 
pronounced with a degree of absurdity which can only be 
accounted for by all the surrounding circumstances of the 
time, and is, taken without them, utterly inconceivable. This 
extravagance is rapidly fading away, and even Chateaubriand 
asserted in one of his speeches in the chamber of peers, after 
the revolution of 1830, " I do not believe in the divine right 
of kings ; monarchy is no longer a religion ; it is a political 
form." The duke of Fitz-James, whose political views were 
solely formed upon the antiquated theories of French royalty, 
himself having followed the Bourbons into their exile, and 
being believed to have stood in the relation of consanguinity 
to his royal master Charles X., waived the idea of divine 
right, in the chamber of peers, on April 19, 1831, and ap- 
pealed to the people, with a view to establish the right of the 
duke of Bordeaux to the French throne. Before the last 
revolution, it was not uncommon among the French royalists 
to speak of a culte de la monarchie, meaning a veneration ap- 
proaching to worship of monarchy, with all the expressive 
symbols, if not entire worship. We, at present, must care- 
fully distinguish between sovereignty and supreme power, 
and, though etymologically the same words, we have as 
much right to distinguish between them as between royal 
and regal, and so many similarly related terms. 

LXXV. We are told that kings are of God. So they are, 
if good, and where monarchy is the best government for the 
given circumstances ; because it is the will of God that man 
should live in a state, and consequently have a government. 
But surely the people are of God too, and, what is more, they 
are ends for which governments are but a means. Nor can 
it be seriously maintained that every monarch that ever ruled 
has been such by the special direction or appointment of God. 
Was every Chinese emperor, every sultan, every African 
king, every Indian chief, specially appointed by divine inter- 
position? They are not civilized, it is perhaps objected. 
Were Caligula and the long train of equally insane Roman 



250 



THE STATE. 



emperors of God ? They were not Christians. Then, was 
the Austrian line of rulers in Spain, was the Bourbon line in 
that same country, of God ? Why should we pronounce 
blasphemies ? Were James and Charles L, with their Buck- 
ingham, of God ? Were Charles II., Henry VIIL, lewd 
Elizabeth of Russia, Charles IX. of France, Louis XV., Pope 
Alexander VL, was the lately expelled duke of Brunswick in 
his madness, of God ? He was ; but so are wolves in the 
forest. Was Napoleon of God? If so, when did he begin to 
be so ? 

If, however, the expression means only that they were 
monarchs in consequence of a combination of many laws of 
the universe, then it means nothing, because then everything 
is of God, and we need not assert this of monarchs especially. 
Nor do I maintain that many dark pages of the history of 
the people cannot be mentioned : all I desire to say is, that 
nothing can be established in this way. If there is anything 
mysterious about the monarch, something by which sover- 
eignty is personally and indelibly attached to him, then, I 
repeat, Charles X. must have taken it in 1830 to Holyrood 
Castle, and France was from that moment incapacitated to 
be a state and perform all necessary acts of sovereignty. Yet 
when Louis XVIII. returned to France in 18 14, all laws 
which were not specifically abolished remained in force, and 
even the pension of Robespierre's sister continued to be 
paid. 

Great Britain did not acknowledge Napoleon as emperor ; 
yet did she on that account consider Louis XV] II., when 
residing in England, as sovereign ? Would not any grand 
jury have found a true bill against him had he transgressed 
the laws ? There is undoubtedly some indistinct idea that 
sovereignty once enjoyed prevents the individual from ever 
becoming an entire subject again, and kings who abdicate 
continue in many cases to enjoy the title of majesty ; but I 
do not speak here of matters of courtesy. Christma II. con- 
sidered herself still a sovereign after having abdicated the 
crown of Sweden, and her execution of Monaldeschi was 



LEGITIMACY. 2$ I 

founded upon this idea. With her the notion was peculiarly- 
wrong, because she acknowledged her successor. She cer- 
tainly therefore could not be sovereign of Sweden. Of what 
was she then sovereign ? Was she sovereign in her own 
person, without any reference to any country ? then why was 
she not sovereign from the moment of her birth, rather than 
when her father's crown devolved upon her ? Until we can 
iind individuals who are, somehow or other, sovereigns within 
themselves, without reference to anything without them, sov- 
ereigns of themselves, and not as rulers over a country, we 
cannot believe in the sovereignty of persons. 

LXXVI. If there is a legitimacy personally in the mon- 
arch, and not in the laws willed or suffered by society, then 
how does it happen that England, France, Portugal, Brazil, 
Sweden, Holland, Prussia, Spain, Russia, Belgium, Bruns- 
wick, are ruled by monarchs who hold the sceptre, or rule 
according to fundamental laws, established in consequence 
of revolutions, or have seated themselves upon the throne by 
force ? How did Russia acquire her right to rule ov^r the 
Cossacks, who were severed from Poland by a revolution ? 
Yet all these monarchs considered themselves, and generally 
are considered, lawful rulers.' 



» The government of England was settled by the " glorious revolution of 1688.'* 
The present dynasty of France was elevated upon the throne by the revolution 
of 1830. The house of Braganza obtained the Portuguese crown by the revolu- 
tion of 1640 against Spain, when John, duke of Braganza, was made King John 
IV. of Portugal. Brazil was raised into an independent empire in 1822, by a 
revolution which declared Don Pedro, son of the king of Portugal, first emperor. 
Tn Sweden, a revolution in 1809 forced Gustavus IV. to abdicate for himself and 
his descendants. His uncle Charles XIII. was made king, and when the elected 
crown prince, the duke Charles Augustus of Augustenburg, died, in 18 10, the 
French marshal Bernadotte, Prince of Pontecorvo, was elected crown prince. 
He ascended the throne in 1818, under the name of Charles XIV. John. The 
reigning house in the Netherlands are the descendants of the great William of 
Orange, the Silent, who directed the revolution of the Netherlands against Spain 
in the sixteenth century. Prussia Proper, which became the foundation of the 
kingdom of Prussia and gave it its name, was made, in 1525, a hereditary duice- 
dom by the revolution of Markgrave Albrecht, elected master of the Teutonic 



252 THE STATE. 

There must, then, be something beyond them, which keeps 
them in those high stations ; it cannot be inherent. It is the 
state, which is infinitely above the monarch, which can see 
race after race pass away, and yet remain the same. Many 
enlightened monarchs have well penetrated the charactei of 
their office. Frederic the Great of Prussia, in his work on the 
Forms of Government, calls the king "the first servant of the 
state, obliged to act with probity, wisdom, and perfect dis- 
interestedness, as if at every moment he should give account 
to his fellow-citizens." (Frederic's Works, 1788, Berlin, vol. vi. 
page 84.) He speaks repeatedly of the fellow-citizens of the 
king ; it is not an inadvertent expression, nor an over-modest 
one, as some late German philosophers, desirous to theorize 
the mysterious character of the word " sovereign," have called 
it. Frederic says in the same work, "the citizens have 
granted pre-eminence to one of their equals only," etc. Joseph 
II., emperor of Germany, and hereditary prince of the whole 



order, one of the Catholic orders of knights, who so remarkably united the char- 
acters of conquering knights with clerical vows. The country was not his, nor 
the government hereditary. He became Protestant and iisurped supreme power. 
This is not the place to investigate what radical changes such mighty events as the 
Reformation may render necessary : all that is maintained is that Albrecht became 
duke of Prussia by high-handed revolution. (Stenzel's Histoiy of the Prussian 
States, in Heeren & Uckert's Series, Hamburg, 1830, vol. i. page 292, et seq.) 

The ruling race of Spain occupies the throne in consequence of conquest, 
for the decision of the war of the Spanish succession between the Bourbons and the 
house of Hapsburg, in favor of the former, can hardly be called anything else. 
In Russia, Catharine II. made herself empress by a revolution against her hus- 
band Peter III., who was killed. So was Ivan, who had the next claim upon 
the throne, according to the rules of hereditary descent of crowns. Her son, 
Paul I., was deposed and killed in 1801, and succeeded by Alexander I. In the 
middle of the seventeenth century the Cossacks revolted against Poland and 
threw themselves into the arms of Russia, to which empire they have ever since 
belonged. Belgium was severed from the kingdom of the Netherlands by a 
revolution in 1830, and constituted into a kingdom, calling Prince Leopold of 
Saxe-Coburg to the throne. William, the reigning duke of Brunswick, succeeded 
by a revolution in 1830 his elder brother Charles, who had committed most sur- 
prising extravagances, illegal acts, and cruelties, acknowledged as such by the 
neighboring governments as well as by the king of England, who repeatedly 
endeavored to bring him back to reason. 



MONARCHS NOT SOVEREIGNS. 253 

Austrian monarchy, called himself the first subject of the state. 
(Memoires du Prince de Ligne, Paris, 1827, vol. i. page 237.) 
He knew, too, that the monarch is for the people, not the 
people for him. When on his death-bed he said to Prince de 
Ligne, a native of the Austrian Netherlands, which just then 
were in rebellion, " Go to the Netherlands ; make them return 
to their sovereign ; and if you cannot succeed, remain there • 
you must not sacrifice your interests to me ; you have chil- 
dren." (Ibid., vol. i. page 236.) Had not so untenable and 
undefinable a view of the inherent character of the monarch 
been taken, man would never have thought of claiming for 
him a position above the law, which it has been shown he 
never can, in reality, occupy. 

There have always been flatterers who would please the 
ears of kings with these ruinous theories. Anaxarchus de- 
clared to Alexander, after he had killed Clitus, " by the throne 
of Jupiter and of kings sits Themis and stamps their arbitrary 
will into what is right." Even without a veto ? Pliny's sim- 
ple " non est princeps supra leges, sed leges supra principem," 
can never be obliterated or changed. " Nihil aut aequius aut 
tutius, quam ut regnet rex secundum leges moresque veteres." 
Grotius, Epist., pars i. ep. 143 1, dated October 27, 1640. 

The Romans knew the difference between supreme and 
sovereign power well. "The granting the full franchise," 
says Niebuhr (Roman Hist., vol. ii. page 299, Amer. ed.), " to 
municipal towns was so strictly deemed an act of the sover- 
eign power, that the tribunes in the sixth century would not 
so much as allow the senate the right of proposing it." Who 
was the state when Philip H. of Spain declared, upon the de- 
cision of the Inquisition, that all the inhabitants of the Neth- 
erlands were guilty of high treason, — that those, therefore, 
who did not fall under the executioner's axe enjoyed their 
life by royal grace alone ? ' Philip, or the people ? 

LXXVII. Yet the monarch of Great Britain is called the 



« Meteren, History of *^he Netherlands, folio 49. 



254 THE STATE. 

sovereign, and various maxims in the British constitutional 
law, such as, " the king can do no wrong," ** he is the fountain of 
honor," " every British subject owes indissoluble allegiance to 
him," seem, at first glance, to express something of that power 
of powers, that self-sufficient source of all power, which has 
been designated in the course of this work as the great attri^ 
bute of sovereignty. But is it so in reality ? Are the maxims 
just mentioned substantial truths, that is, truths on which we 
can farther build, or from which we can deduce farther truths 
as binding as the first proposition, or are they rather constitu- 
tional technicalities, framed and worded to complete a system,. 
to give it that logical symmetry which gives at least an ap- 
parent finish and absoluteness to a system, and for the sake of 
which we find that in all the fabrics which human reason has 
reared in the various theories of science and dogmatics, men 
have resorted to so many fictions ? The difference is impor- 
tant, and, unfortunately, frequently forgotten. If a position be 
d truth in itself, we may draw legitimate consequences from it; 
if it be an illustration, a summing up of what has been stated 
by way of simile, then we must stop with its statement, or we 
shall expose ourselves to the most dangerous argumentation. 
For a simile, even the best, carries always along with it, not 
only that which applies to the given case, but also that which 
does not, and if we assume the simile itself as full and com- 
plete truth, the latter will be taken to be ground of truth as 
well as the former. 

If the British commentators upon constitutional law had 
always used the word crown, instead of king or sovereign, re- 
specting those important maxims, the danger of confounding 
the king's personality with his political authority would have 
been avoided in a great measure. Others would have borne 
much more the stamp of truth. Thus, it is said, "the king 
never dies," while it is meant that the crown never dies, or 
does not follow the head which wore it for a time to the 
tomb, because all individuals must die, all hands, even those 
that grasp a sceptre, are grasped in turn by the cold hand of 
death, brt Britain dies not. The crown has always a living 



BRITISH MONARCH. 255 

brow to support it, is the true and unparadoxical meaning of 
the maxim, "the king never dies." All members of parliament 
must die, but parliament dies not. In short, " the king never 
dies," means that the chancery does not die with the chancellor, 
the fleet with the admiral, the bank with the director, the city 
with the mayor, the people with their ruler, and no more. 

As to the oath of allegiance, I have treated of it already. 
The queen Victoria, in some of her late communications to 
the two houses, respecting the Canadas, speaks of ** my prov- 
inces," " my colonies." Now, there is probably no English- 
man living who would pretend that the pronoun " my," which, 
as has been mentioned in a previous chapter, is used to ex- 
press an infinite variety of relations between two persons or 
persons and things, expresses in this case, used by a young 
lady of eighteen years, the same meaning as that in which she 
applies it daily — for instance, to household articles. The 
English believe not only that monarchy (not ** surrounded by 
republican institutions," hut forming, indeed, to all intents and 
purposes a great republic ; for which of the two, George III. 
and Pitt with the parliament, was substantially the ruler, and 
which became the executor of the other's will ?) is for their 
given circumstances far the best government, but also that, 
upon the whole, the order of succession by which females 
.nay obtain the crown in default of male issue is more con- 
venient for them than any other would be ; but so good an 
authority as Dr. Lushington lately said in the commons, with 
regard to a suggestion of his that the king of Hanover might 
be excluded from the succession, " The line of succession, as 
well as the constitution itself, was framed for the good of the 
people, and if the existing law ceased to be operative in that 
respect, then it came for the consideration of parliament what 
was to be done." (As quoted by the papers of the day.) The 
queen, in her first proclamation, said, "By the death of his 
majesty, my beloved uncle, has devolved upon me the duty 
of administering the government of this empire. This awful 
responsibility," etc. There is nothing about her being the 
owner of England ; in short, she succeeds to the crown, that 



256 THE STATE, 

is, to supreme, but even that far from being unlimited, power. 
There cannot be now an Englishman who pretends to maintain 
that there is a peculiar quality, called sovereignty, inherent in 
the monarch, and that what in England is called sovereignty 
is essentially something founded on a relation between the in- 
dividual whose brow supports the crown and the people. 
Startling as the declaration that " a people may be without a 
king, a king cannot be without a people" (Journals of the 
Commons, vol. i. p. 156) may have been for some persons 
under James L, it is now too well established a truth to detain 
us any longer. " Do not imagine," wrote Frederic the Great 
to the young duke of Wiirtemberg, who had been educated 
under his eyes, in his Monarch's Mirror, handed to the duke 
on the day of his departure from Berlin (1744), "that Wiir- 
temberg exists for you, but believe that Providence has placed 
you in the world to make the people happy." 

I have seen it stated, indeed, that the schoolmaster is like- 
wise for the school, and not the school for the teacher, yet 
that it would be senseless to claim for the children the right 
to prescribe rules for the teacher. All that is to be answered 
is, that men are not children, and children not men, and that 
there exists this slight difference, that the children without a 
master form no school, but the people without a monarch are 
still a people, and that that which makes the king a king, the 
ruling, may be done sometimes by others ; or have the Swiss, 
have the Americans, had all antiquity, no governments ? Are 
we all lost sheep without shepherds? 

According to the principle laid down in this work, that we 
must learn the true nature of a thing from its most perfect or 
most developed state, and not from its incipient stages, still 
less from stages of corruption or violent distortion (" Non in 
depravatis, sed in his quae bene secundum naturam se habent, 
considerandum est quid sit naturale." Aristotle, Polit, lib. l), 
we are not bound to go to the most distant or the 'most des 
potic periods of English history in order to understand its 
true character. Yet even if we pursue this plan, which wa^ 
the one that Hume proposed to himself, we shall find that 



BRITISH MONARCH. 



257 



the British monarch was never considered as possessing 
those attributes without which no clear idea can be connected 
with the term "sovereignty," as has been successfully shown 
by Mr. Brodie, in his learned History of the British Empire, 
especially in the first volume, a work of great value for con- 
stitutional history. As to the later times, I refer the reader to 
Hallam's Constitutional History of England, and to Black- 
stone, i. 192, et seq., and iv. 440. I shall only cite here part 
of a law of 25 Henry VHL, c. 21, from Sir Edward Coke, 
copied from Brodie, i. 286 : "Wherein by authority of parlia- 
ment it is enacted and declared (directing this declaration to 
the king), that this your grace's realm, recognizing no supe- 
rior under God but only your grace, hath been, and is, free 
from subjection to any man's laws, but only to such as have 
been devised, made, and ordained within this realm for the 
wealth of the same, or to such other, as by sufferance of your 
grace and your progenitors, the people of this your realm 
have taken at their free liberty, by their own consent, to be 
used amongst them, and have bound themselves by long 
use and custom to the observance of the same, not as to the 
observance of the laws of any foreign prince, potentate, or 
prelate, but as to the customed and ancient laws of this 
realm, originally established as law of the same, by said suf- 
ferance, consents, and customs, and none otherwise." 

If the Declaration of Rights of 1688 is not a declaration of 
the sovereignty of society, then we really do not know what 
the instrument means, and what particle of right to the crown 
William and Mary ever had. But it is asserted by tory writers, 
for instance in the Book of the Constitution (Glasgow and 
Edinb., 1833, p. 121), that had the British possessed the right 
to choose their own governors, " it is clear that the English 
nation did at that time (1688) most solemnly renounce and 
abdicate it, for themselves and for all their posterity for- 
ever," because a subsequent clause of the Bill of Rights says 
that " the lords spiritual and temporal, and commons, do, in 
the name of all the people aforesaid, most humbly and faith- 
fully submit themselves, their heirs and posterity forever," 

17 



258 THE STATE. 

etc. Now, the question is, what is the meaning of the term 
" forever" in politics ? Has it an absolute meaning, or has it 
only a meaning under and within that sovereignty which is 
above all and everything? History proves that the latter is 
the case; else there could hardly be an organic change of 
any government. However, I waive the argument which lies 
in the total want of right in one generation absolutely to bind 
another, and prove my point from the Declaration of Rights 
itself The people of England submitted themselves " for- 
ever," that is, as will be admitted, on the terms declared in 
that bill. It is distinctly expressed. Now, that same bill 
says, in paragraph x., that every king or queen shall, on 
taking the coronation oath, " make, subscribe, and audibly 
repeat the declaration," mentioned in the act 30 Charles H., 
entitled, " An act for more effectually preserving the king's 
person and government, by disabling papists from sitting in 
either house of parliament." This, too, was " forever ;" yet 
Catholics do sit in the two houses since 1830, despite the Bill 
of Rights itself; and it was a tory administration under which 
this organic change took place. 

This paragraph may fitly conclude with the words of Lord 
Lansdowne, spoken after he had been premier, on December 
26, 1788, when the regency question was under discussion : 

"The principles laid down at the revolution make the 
crown to be, not descendible property, like a pig-sty or a 
lay-stall, but a descendible trust for millions and ages yet 
unborn. I contend, therefore, that the hereditary succession 
cannot be considered as a right. It is a mere political expe- 
dient, capable of being altered by the two houses. In cases 
of exigence, they have always been termed the legislature, in 
order to prevent the greatest of all possible evils, a disputed 
succession." 

He also said, " The people, my lords, have rights. Kmgs 
and princes have none. The people want neither charters 
nor precedents to prove their rights ; for they are born with 
every man in every country, and exist in all countries alike, 
though in some they may have been lost. I wish, therefore. 



CAN THE KING DO NO WRONG? 259 

that the question of right to exercise the royal authority, 
which has been claimed and asserted, may be decided; in 
order that those who suffer oppression under governmetfits the 
most despotic may be taught their rights as men. They will 
then learn that though their rights are not, like ours, secured 
by precedents and charters, yet as soon as they assert their 
rights they must be acknowledged."' 

LXXVIII. The king can do no wrong, the king is the 
fountain of honor, are precisely in the same sense true and 
not true, as the preceding maxim, that the king never dies ; 
that is, they are fictions or metaphoric expressions, and there- 
fore incapable of sustaining any argument to be deduced 
from them, but merely expressing an idea already established, 
and only so far as established. Blackstone distinctly claims 
the same inability of doing wrong for each branch of the 
legislature (i. 244). They are, then, no peculiar attributes of 
sovereignty, using the term as applying to the person called 
by the English law sovereign. Besides, we know that the 
king, even constitutionally, can do wrong, and can be declared 
to have done so, as was the case in the Bill of Rights re- 
specting James II. ; that there is a " superiority of the laws 
above the king" (Blackstone, iv. 440); that the British law 
"confirms the doctrine of resistance when the executive 
magistrate endeavors to subvert the constitution" (Ibid.). 
Everything cum grano salis. Even the Catholics themselves, 
when the infallibility of the pope was received in a far wider 
meaning than at present, asserted, respecting the dispute be- 
tween the Jesuits and Jansenists, that the pope's infallibility 
cannot extend to facts. The pope had declared that certain 
doctrines were damnable. The Jansenists said they were not 
contained in the works of Jansenius, upon which the pope 
declared those damnable doctrines were contained in the work 
" St. Augustine" by Jansenius. It is well known that the 
pope had to yield in a considerable degree. It is certainly a 



Wraxall, rosthumous Memoirs, p. 467, American edit. 



26o THE STATE. 

very curious fact in the history of constitutions that the fun- 
damental law of the kingdom of the Netherlands pronounces 
nowhere the irresponsibility of the king or the responsibility of 
ministers, but according to paragraph 179 receives "com- 
plaints against the king" and sends them to the supreme 
court, and that this constitution was drawn up by the king 
himself, who on his return in 1813 insisted upon being made 
no more than what he had been, stadtholder. When at last 
he was obliged to yield to the earnest representations of the 
people, he consented to take the crown on condition of a con- 
stitution which should " protect the liberty of the citizens 
against all possible intrusions."^ 

So convinced are the English that the king can do wrong, 
that they do not allow him to do anything which is not con- 
sidered as having been advised by his ministers, so that there 
may be men responsible for his great acts f and on the other 
hand tl>e law does not hear, if the king assures on his honor 
that certain objectionable acts were personally ordered by 
him, as was the case in Strafford's trial. No one shall obey 
the king personally and individually, but only politically, sur- 
rounded by the law. Whether the maxim, the king can do no 
wrong with responsible ministers, be a well-contrived expedi- 
ent, is another question. I consider it as one of the choicest 
productions in the course of constitutional history ; but at the 



' Van Campen, History of the Netherlands, vol. ii. p. 581, Heeren & Uckert's 
series, Hamburg, 1833. [Constit. of Aug. 24, 1815.] 

« * It seems that even the prerogative of pardon is virtually exercised with the 
advice of the minister for the home department, though the king might exercise 
it alone. Or would a minister resign if the king should exercise this power 
without advice ? We find passages in the papers like this : ** Lord John Russell 
has refused to accede to a petition from the inhabitants of Canterbury and 
Faversham for a mitigation of the sentence of transportation on the three men 
who were convicted of having been actively engaged with Courtenay when he 
committed the two murders." (Galignani's Messenger, Oct. i, 1838.) The pre- 
rogative of pardon of the British monarch is constitutionally limited, so far as 
pardon is concerned, in cases of impeachment, by the act of settlement, which 
provides that no pardon under the great seal of England shall be pleadable to an 
impeachment of the commons in Parliament. [But when a person is impeached 
and found guilty, the king can then remit the sentence.] 



THE KING THE FOUNTAIN OF HONOR, 261 

same time I say, with Essex, " What ! cannot princes err ? Can- 
not subjects receive wrong? Is an earthly power or authority 
infinite ? . . . Let them (who mean to make their profit of 
princes) acknowledge an infinite absoluteness on earth that 
do not believe in an absolute infiniteness in heaven." (His 
letter to Lord-Keeper Egerton, in Essex's Original Letters.) 

The king is the fountain of honor, as he is of pardon, that 
is, as he is king altogether, namely, according to and limited 
by laws ; he is not personally the fountain of honor. No 
man would hesitate to receive rather the " thanks of parlia- 
ment" than a personal mark of honor from the monarch, or 
even an order. The history of this expression must probably 
be sought for in the feudal law, in which a barony was called 
an honor; the honors of feudal government were almost if 
not quite all annexed to the seisin and possession of fiefs or 
feuds, which were all holden mediately or immediately of the 
crown. So that saying that the king is the fountain of honor 
was but another mode of saying that he was the lord para- 
mount of the soil.^ Hence, when in process of time the 
honorary title of nobility or office came to be conferred with- 
out the simultaneous grant of lands to support it, there was 
iio occasion of any change of phraseology, though the import 
of the word "honor" had become somewhat narrower and 
less substantial than before. Real political honor can no more 
be bestowed by an individual than worth. It is society on 
which it depends. The expression therefore amounts only to 
this, that the monarch is the pronouncer of honors, and only 
of certain ones, for doubtless it is an honor to sit in parlia 
ment, which the king does not bestow. The king of Prussia 



* [Honor (as is shown by Prof. P. Roth, Gesch. d, Beneficialwesens, p. 432) 
denoted in the eighth century and the beginning of the ninth the office of the 
official person, — the count, for instance, who was usually appointed for life, but 
his beneficium lapsed when the king who had bestowed it on him died. From 
the middle of the ninth century honor is scarcely to be distinguished from bene- 
ficium, that is, to use later language, from \hefeudztm, or fief. When the feuda- 
tory had count's jurisdiction, the two terms were necessarily liable to confusion. 
When this ceased, honor denoted title — nobility with ':he political precedence 
pertaining thereto.] 



262 T^E STATE. 

made General Bliicher prince ; the people called him Marshal 
Forward, by which name the Germans love to call him to this 
day. Which was the greater honor? The monarch can do 
nothing but pronounce political honor; and this prerogative, 
therefore, like any other, belongs to his political character, and 
proves no sovereignty, for it would always be a second-hand 
sovereignty, that of the law being superior to it, according to 
the commentators of the land themselves. When James II. 
left England, was the fountain of honor dried up ? William 
III. came and made Bentinck duke of Portland. Napoleon 
founded the Legion of Honor; it did not follow him to St. 
Helena, but Louis XVIII. became, according to English 
phraseology, its fountain. Charles X. left France, and Louis 
Philippe became the so-called fountain. Is it not then clear 
that society, the state, is the fountain, and the respective 
monarch merely the spout, the jet d'eau through which the 
well of honor flows ? If, therefore, sovereignty, as we have 
defined it, must be somewhere, it is certainly not in the king 
that we are to find it, and if the word sovereign is never- 
theless applied to the monarch, it means nothing more than 
supreme executive power within and under the constitution, 
which comes from sources of superior power. 

LXXIX. It would certainly be unwise in any British poli- 
tician to struggle for a change of the monarch's title, or that 
in future he should be called King of the English, and not 
of England, as long as no party assumes these words as a 
foundation to rest important claims upon; simply because 
it would be a waste of energy, while the substance has been 
already obtained. That, however, monarchs of civically de- 
veloped nations are the monarchs, i.e. chief magistrates, of 
the people, and not the monarchs of the soil, will have suffi- 
ciently appeared. In France the change of the title was im- 
portant, because it was meant to indicate a change of things. 
By the first constitution (of 1791) the king was styled King 
of the French (ch. ii. sect. i. 2) ; Napoleon was styled Emperor 
of the French. When Louis XVIII. ascended the throne in 



TITLES OF THE KING, 263 

1 8 14, he re-assumed the old title of King of France and Na- 
varre; but in 1830, upon the expulsion of Charles X., the title 
of King of the French was re-established. Those who have 
endeavored to ridicule this idea as a modern fancy err greatly.* 
I repeat, as to mere correctness, there can be no doubt that 
this is the true title, in the eye of all who consider the king 
as part of and within the government of the country. 



I Mary Queen of Scots. Philip IV. (1285-1314) styles himself, writing to 
Pope Boniface, Roi des Francois. (Chateaubriand, Etudes historiques, vol. iii. 
p. 331.) An engagement between Philip II. of France and Richard I. of England 
was signed thus : " Moi Philippe, roi des Frangois, envers Richard, mon ami et 
mon fidele vassal : Moi Richard, roi des Anglais, envers Philippe, mon seigneur 
et mon ami." (Biog. Universelle, vol xxxix. p. 94.) Gustavus Adolphus styled 
himself " by the grace of God chosen and hereditary prince of the Swedes, 
Goths, and Wends." (Zober, Unprinted Letters of Wallenstein and Gustavus 
Adolphus, Stralsund, 1830.) The instances might be greatly multiplied. In 
Latin the king of Prussia is styled Rex Borussorum,— analogous to the ancient 
Rex Romanorum. And yet, in 1655, during the transactions between Cromwell 
and Louis XIV., the French ambassador complained that Louis had been called 
** rex Gallorum," instead of " rex Gallise," Thurloe, State Papers, iv. 107 



CHAPTER VII. 

Public Power. — Why necessary. — Why must it be restrained ? — Abuse of Power 
general. — Man justly loves to act, to produce, to effect something. — It is the 
inherent Character of all Power to increase if unchecked. — Powe rdelights, and 
is not willingly given up. — Power, in all Men and all Spheres, is irritated at 
Opposition. — Man judges according to his Position, those in Power differently 
from those out of it. — Power is in its Character imposing. 

LXXX. The state stands in need of power for its govern- 
ment, or organism through which it obtains, or strives to ob- 
tain, the state objects. Let us call it public power. Public 
power may rest on a moral basis : for instance, people obey a 
law because it is a law, not because a penalty is attached to 
it. In the year 1836, the members of the South Carolina 
legislature resolved unanimously, in a caucus, to throw away 
the presidential vote, or to vote for an imaginary person, 
because they were not satisfied with either candidate. When, 
however, the vote was to be taken upon this preliminary reso- 
lution, it was suggested that the constitution of the United 
States says (art. ii. sect. I, 3) that the electors "shall vote by 
ballot for two persons." The legislature, therefore, found 
themselves bound to vote for some actual citizen or other, and 
gave their vote for Mr. Mangum, who was no candidate. It 
was a purely moral act. 

In former times, the citizens of Hamburg contributed their 
quota of taxes, unseen and uncounted, after the general sum 
had been granted. 

Or government may have the right to bestow honors and 
thereby exercise power. Or public power may rest on a 
physical basis, — for instance, when the constable with his 
assistants carries off a person, or government sends soldiers 
to enforce obedience. Or it may rest on a basis of a mixed 
character, — foi instance, on the pecuniary means at the disposal 
264 



PUBLIC POWER. 265 

of government. Pecuniary reward cannot be strictly called 
physical or moral. 

Power and authority are promiscuously used in politics. 
Authority is the lawfully bestowed, or by common consent 
acknowledged, right of performing certain public acts. The 
supposition is that where this right exists, the power to make 
use of it exists, and hence the promiscuous use of the two 
terms. Thus, the constitution of the United States, art. i. 
sect. 8, says, " the congress shall have power," etc. We have 
seen already that all power must originally rest upon a moral 
basis, although not indeed in each individual case. 

LXXXI. Why does the state want power for its govern- 
ment ? Because : 

I. Man is a physical, intellectual, and moral individual of 
himself, and must remain so. His worth and value depend 
upon it ; and yet he is bound to live in society, and this so- 
ciety must, according to the great plans of the Creator, move 
from one stage of civilization to another. Both require an 
infinite variety in the combination of the elements which con- 
stitute the inner man, and infinite changes of his social rela- 
tions, of which an infinite variety of character, desires, views, 
and actions is the necessary consequence and indeed the 
object. Astonishing as the power of combining throughout 
the rest of the creation may appear to us, in man it operates 
most surprisingly. Animals can live in large numbers to- 
gether without many jarring interests ; enormous herds of 
buffaloes graze together and rarely fight with one another, 
because their individuality is a merely physical one ; they all 
move simply according to the food they find. It has been 
^^ery erroneously supposed that the interests of men cross 
each other, and that consequently governmental power is 
requisite merely on account of man's sinfulness. It is one of 
the first principles of mankind that infinite variety should 
exist. Without it all would stagnate. This variety must 
lead to different views, not only according to men's wicked- 
ness, but because they are finite beings. Infinite wisdom 



266 THE STATE. 

alone, omniscience, can penetrate the essence of all things 
and, consequently, their essential relation to one another. 
Though no citizen were ever actuated by selfishness, still, 
power for the government would be necessary, in order to 
protect the jural relations of the citizens, each one of whom 
can only see and feel first through himself Each man, 
first of all, is the key through which he has to understand 
that which is around him.' The variety of pursuits and de- 



' Let me not be misunderstood as if I were in any the slightest degree an ad- 
vocate of the theory of selfishness or egotism, but lately prevalent in some coun- 
tries. There is nothing more baneful to society than the corroding spirit of egotism, 
I have given my view on the importance of sympathy, in several previous pas- 
sages; still, it must not be forgotten that man cannot by any possibility see through 
other eyes than his own, feel through another heart than his own. He begins 
even with regard to his feelings for others from the circle around him. Your 
neighbor's father dies; you feel strongly for him, for you know what you felt 
when your own departed. Your neighbor's son breaks his arm ; you feel strongly, 
yet differently from what you did when your own son was brought home covered 
with blood. That which happens in my sight affects me more than that of 
which I only hear. Great misefy in the street in which I live goes more di- 
rectly to my heart than misery at a greater distance. The distress of the Spital- 
fields or Lyons weavers is read by no one without commiseration and lively feel- 
ing, yet the distress in our country, our own state, community, street, house, 
affects us more, in the same degree in which the circle narrows. The account 
that the maids of honor of Queen Catherine of France tore the clothes from the 
corpse of Baron Soubise, slain with so many other noblemen in the royal palace 
during the massacre of St. Bartholomew, and made themselves merry at the 
spectacle while his blood was yet streaming from his wounds (Aubigne, ii. 546 ; 
Lacretelle, ii. 352), or that Caesar Borgia, having successively murdered, with 
dagger or poison, his own brother, brother-in-law, and hundreds of victims to his 
lust of power or desire for money, killed Peroto, the favorite of Pope Alexander 
VI., Csesar's father, while his victim had sought protection under the pontifical 
robe, and the pope pleaded for him, so that the blood of the favorite gushed into 
the face of the pontiff, and that Caesar went forth unpunished (Ranke, Princes 
and Nations of Southern Europe, Berlin, 1834, vol. ii. p. 50, vi^here all the 
Italian authorities are given) — these accounts affect us, however intense our feel- 
ings at all the loathsome crime may be, far differently from any act of less 
criminality which may occur in our own community. There is always, and 
necessarily must be, an essential difference between the effect of anything which 
affects us in a general way only, and that in which we are personally interested. 
If it were not so, the world would be in the greatest confusion. Every one 
would make the cause of every one his own. Who could read a single news- 
paper without being rendered wretched almost for life ? Or could we feel any 



PUBLIC POWER, 267 

sires, of views which incline more either to that v/hich has 
been and exists or to that which is expected, cause actions 
which intercept and contradict one another. A very large 
number of all civil law cases originate neither from insufficient 
laws, nor from the evil designs of the parties, nor even from 
their litigious spirit, but because both believe they are right 
and that it is their duty to maintain their right. If, then, 
every man shall have his due, how can it be otherwise 
done than by a higher authority and power to sustain the 
? uthority ? 

2. The state, through its government, must protect each 
citizen against any violation of his rights by wrong-doers 
within or enemies without. 

3. The state, as a whole, must maintain and protect itself 
from evil designs against its existence from within, and 
attacks upon its independence from without. 

4. The state, a jural society, must maintain its character as 
such. It must punish violations of rights, not only with a view 
of individual protection (mentioned above, 2), but also to 
maintain its own character as the society of right. Without 
p inishment of offences, the state would lose its essential 
character, and society, therefore, could no longer exist and 
pursue its ends as society. The state acquires the right to 
make use of its punitory power against offenders by the 
olTence committed against it, that is, by each infraction of the 
law, and it is its duty to do so wherever the general protec- 
tion, physical or moral, requires it. By moral protection I 
nriean that which exists in the maintenance of the character 
of the state, i.e. a society of right. Rights exist between 
moral beings only; animals have no rights. The state pro- 
t(^cts against offences both in a psychologic way, by affixing 
beforehand a punishment to every offence — by warning every 



loinger, at all, if all the joyous events and sad occurrences, past and present, were 
to excite our interest as much as our own ? In this necessary order of things^ 
too, we xiave, as alluded to in a previous passage, to look for one of the dgep 
sour es of patriotism. 



a68 THE STATE. 

one; in doing so, it leaves every one free;' and in a physical 
way, after the offence, notwithstanding the penalty, has been 
committed. 

5. One of the main state objects is, as has been seen, the 
obtaining jointly that which is necessary for society and cati-j 
not be obtained by individual exertion — to obtain publicly 
what cannot be obtained privately. This, too, requires power, 

LXXXIl Why must public power, if once granted, be 
carefully watched, modified, retarded ? Because public powe* 
is not a physical power which can be either expressed or lim- 
ited with absolute definiteness. The "vessel of the state" is 
not a steamboat, of which we can say it sails with so much 
horse-power. Public power is finally always founded upon 
confidence. Make a law ever so definite, circumscribe tht 
limits of power which you grant, with ever so much care; 
you must repose confidence in him who has finally to carry 
out that law — the confidence of common sense and moraJ 
sense. Confidence, not indeed unlimited confidence, must b( 
the last vital spark which makes a prescribed action a livin 
thing. The claim of confidence, so continually proffered b 
James I. and Charles L, was not wrong in principle ; the diff' 
culty lay in the degree of confidence they claimed, and bot' 
showed themselves unworthy of a far less degree. All th 
wisdom of government depends upon a proper balance b^ 
tween confidence and distrust. Confidence, then^ is indisper 
sable ; but this confidence will be abused. Why ^ Becaus 
he who has power, whoever he or they may be, king ministers 
nobles, commons, clergy, soldiers, the people, abus ^ it. Po 
lybius, the first who reduced the idea of a circle ot politica 



* Feuerbach, Manual of Penal Law, loth ed., parag. 10 et seq. M { views ( 
the punitory power of the state, or the primordial right of punishmer t, and tl:i 
duty of punishment, as well as on various other subjects relating to tnese, ha\ 
been given in a popular Essay on Subjects of Penal Law, and on Unin ^rruptef 
^^olitary Confinement at Labor, as contradistinguished from Solitary Confinemei) 
at '^sN'ight and Joint Labor by Day, printed by order of the Philadelphia Sociefc' 
for Ai'leviatiug the Miseries of Public Prisons, Philadelphia, 1838. ' 



LOVE OF POWER, 269 

changes, namely, monarchy, aristocracy, den.ocracy, which 
changes again into monarchy, to a system, founds already the 
necessity of these changes upon the degeneracy consequent 
to the abuse of public power in each form of government. 
(Lib. vi. c. 3, seq.) Why is this the case ? For the following 
reasons : 

I. Republicans complain of the abuse of power practised 
by monarchs, their ministers, lords, commanders; and yet 
each complainant carries within himself the germ of a despot, 
and abuses power proportionately within his sphere as much 
as the others in theirs. The monarchs are men of the same 
organization with ourselves. Each party that is out com- 
plains of abuse of power in that which is in. Are then all 
these complaints mere declamation ? They are not. If so, 
the abuse of power must be founded on some natural principle 
within us, and its origin need not be bad. It must be bad on 
account of insufficient restraint. Let us trace, then, the origin 
of this phenomenon. 

The love of power is not necessarily bad in its origin. It 
is closely connected with what I should like to call the desire 
or urgency of action, an original principle of essential impor- 
tance. Where power, energy, or any faculty for action and 
activity {dovaiitq^ has been given, there exists likewise an in- 
tense desire to exercise, practise, apply it. Such is its very 
nature, and without it the world would be at a stand. Whatever 
we may undertake originally by way of interest, the love of 
activity, the desire to leave some memorial of one's self, to 
produce and effect something, soon supersedes it. Does the 
merchant carry on his business in order to obtain a certain 
sum and then to stop? Or does he continue his operations 
even when, whatever the increase of his fortune may be, he 
cannot expect to live thereby more comfortably, give a better 
education to his children, or a surer prospect of independence 
to his wife, should he leave her a widow ? It is not ambition 
alone that may prompt him. There are many rich merchants, 
neither ambitious nor avaricious, who yet remain in business, 
and the community praises them for continuing it. Why do 



270 



THE STATE. 



nearly all men love farming in the evening of their lives, when 
they are excluded from the busier spheres of life ? Nearly all 
" retired men," merchants, lawyers, politicians, princes, love 
farming. Because in farming, though it is calm in its nature 
and therefore suitable to their situation, they still produce, act 
perceptibly to their own eyes, and they prove to themselves, 
by that which surrounds them, that they are still acting 
beings. Does the orator, who feels and sees that he wields 
power by his word of mouth, merely speak for the sake of 
usefulness, or does that peculiar delight which a sound and 
energetic speaker necessarily derives from the consciousness 
that he exercises a mighty power over his hearers, strongly 
commingle with it ? Did Fulton never think of anything else 
but of benefiting his fellow-creatures, or was he strongly pro- 
pelled by the pressing desire for activity and the application 
of that power which nature had given him, and the delight 
which the soul always feels in the activity of its powers, 
capacities, talents, whatever name they may have? What 
prompts an Ehrenberg to study the structure and vital organ- 
ization of insects in the burning clime of Egypt? Is it utility? 
What impels every votary of science to pursue his toilsome 
paths ? Is it interest ? Is it utility alone, or chiefly ? or is it 
the delight which the human mind feels in the consciousness 
of activity? " Omnis enim scientia et admiratio (quae est 
semen scientiae) per se jucunda est," says Bacon. (De Aug- 
ment. Scientiarum, lib. i.) And what is this admiration but 
the delight of intense activity and consciousness of the power 
and penetrating or combining action of our mind? What 
prompts the true poet ? Was the first idea of Shakspeare to 
delight his fellow-men, or was it the yearning of his august 
genius to act, to manifest — to exteriorize itself, without which 
genius is a burning fever? What leads the painter, the sculp- 
tor, to produce ? Was Columbus induced to sail into unknown 
seas only by the desire of obtaining means to drive the Sara- 
cens from Palestine, as he himself believed, or did he wish 
to obtain these means because his exalted mind urged him 
necessarily to act ? The nobler the mind, the more endowed 



ABUSE OF POWER. 2/1 

the soul, the more intense also the thirst, the more pressing 
the anxiety to act, to produce, to exert our powers — to im- 
print our mind on the world without. It is indifferent what 
name we give ; our language has no term which expresses 
with one word the Greek dwa<j^ai, TzoteTv, the German schaffen 
and wirken; but what I mean to convey is what those words 
express in their respective languages. 

The love of power, therefore, is intimately connected with 
a principle in the soul, by which man is stamped more as the 
image of his Creator than by any other. 

The love of power is a higher degree of the love of activity, 
which is found everywhere in men. All absence of activity 
pains us. We find it in all spheres, from the common cutting 
in wood or writing in sand to the grandest self-sacrifices in 
the scholar, who, like Leibnitz, knows he will die early if he 
perseveres in his studies, but still prefers a short life of intense 
thought to a long one of repose. This love of activity is also 
closely connected with ambition, on which see the proper 
chapter. 

LXXXIII. 2. It is likewise the character of power, phys- 
ical, mental, political, and moral, that it goes on increasing, 
if not counteracted. Indeed, it is the essential attribute of 
power that unchecked it will go on increasing. 

3. The delight in the exercise of power, combined with the 
frailty of man, produces this effect, that few who have power 
are willing to give it up. Whether in the people or the mon- 
arch, power is a bewitching thing. There have been mon- 
irchs, indeed, who have abdicated, as Charles V., emperor of 
Germany, and Diocletian of Rome, but as long as they had 
power did they not remove everything in its way ? I do not 
say that there may not be inducements still more urgent to 
give it up. Others, as the elector Frederic of Saxony, declined 
the German crown. But there is at times a great difference 
between a crown and power. 

When Holland was engaged in that glorious struggle with 
Spain, in which thousands of deeds were performed, by men 



2/2 THE STATE. 

and women, whlcli are hardly equalled by the Greeks in the 
Persian wars, when the whole people were animated by in- 
spiring enthusiasm, when William of Orange was at the height 
of his popularity, when the inhabitants of the country as well 
as the cities had to contribute all they could spare to defray 
the exhausting expenses of the war, even then that great man 
could not induce the cities of Holland, in 1573, to admit 
among their large number of representatives at least three 
from the country, though the farmers of northern Holland 
alone bore two-thirds of the public charges. They had not a 
single member in the states. 

How long did the English parliament resist all the fairest 
measures of reform, even though Pitt advocated them ! The 
Spanish cortes in 18 12 would allow Mexico no representation; 
Portugal behaved similarly towards Brazil. How many acts 
of crying injustice are recorded of Athens against those who 
depended upon her as allies ! As soon as the various re- 
ligious sects after the Reformation had obtained what they 
wanted, nearly all of them denied the same to others. In 
short, whoever gets in likes to lock the door behind him. 

4. It is a psychological truth, that all power, however law- 
ful, being resisted, the first feeling in those intrusted with it 
is not that of regret at this resistance, on account of the object 
they had in view, but of offence at the opposition itself. This, 
again, is not peculiar to one set of men or class of society, but 
without exception true of all. Monarchic power is not more 
offended at resistance than democratic or parental power. 

Many a father who complains of public functionaries on ac- 
count of their love of power forgets to ask himself at what he 
feels offended when his child is disobedient; because it dis- 
obeys a wise rule he has given ? or because it is disobedient 
and therefore acts wrong ? or because it has disobeyed what 
the father had ordained ? The severity of all early penal laws 
arose from this source. The idea, the feeling, was, " You 
have dared to disobey my power, you have rebelled against 
my authority," not, " You have offended against society, acted 
wrong, because my authority is for the common good." 



ABUSE OF POWER. 



273 



This is likewise the case when we are justly opposed ; for, 
whatever may be the ground of opposition to us, and though 
we may have a pretty distinct perception of the right of the 
opposer, the first feeling is the desire of overcoming the op- 
position. Few men indeed are ever opposed without at the 
first moment having the feeling of being wronged ; and this 
extends even to the most atrocious criminal. And as the in- 
dividual, so the body. Whoever wields the public power feels 
irritated by opposition, be it ever so peaceful or loyal. Power 
therefore would overcome everything in its way, if not modi 
fied, or, which is the best, if not generated in a manner which 
insures the least possible danger. This jealousy of opposition 
is frequently increased by a consciousness of greater weakness 
than the possessor of power wishes to have others know, or 
by a suspicion that new or delegated power may not be ac- 
knowledged to the full. Alva decreed, July 31, 1571, after 
much debate and opposition in his own council, a most hate- 
ful law, and farther declared that the honor of the king de 
pended upon him, and that every one who opposed him was 
a fool or a traitor. (Raumer, Letters, etc., i. 179; Thuanus, 
lib. 20.) The correspondence of Strafford and Laud exhibits 
the same principles. 

5. Man judges first according to his own perceptions, and 
it requires great skill and much honesty to view matters in 
the light of others. (See the previous section and note.) If 
I feel oppressively warm, I say the weather is warm, and 
believe all must feel oppressed, until I have learned that my 
body may be in a state in which a comparatively low tem- 
perature may produce the sensation of a very high one. 
Those in power can but with difficulty see things from above 
as those not in power see them from below. It is therefore 
the history of all governments, all revolutions, that those in 
power, from whatever part of the people they may have come, 
judge by their own view as it appears from their seats, as 
soon as fairly seated in them.^ 

* There is a scene depicted in chap. x. of Mr. Bui war's Rienzi, so expressive 
of what happens every day and everywhere, through all spheres of human life, 

IS 



274 ^^^ STATE. 

6. Power imposes ; power receives everywhere respect by 
its own character. However illegally acquired, the great ac- 
tion of power obtains homage. The success of usurpers is in 
part founded upon this fact ; the people revere power ; so that 
usurpation itself becomes a new acquisition to farther usurpa- 
tion. It is the energy which manifests itself and the capacity 
of action thus proved which overwhelm the beholder. This 
is of peculiar importance in its application to the limitation of 
the executive, the depository of this vast acting and imposing 
power, and to the independence of the judiciary, which rarely 
has an opportunity to act brilliantly like the other branches. 

7. Even after careful limitations have been established, it 
will always be possible for those who have power to overstep 
them and to find aids and abettors. Hardly had parliament 
abolished the most ruinous monopolies, and declared a prin- 
ciple which may be considered as the germ of the Petition 
of Right, in 1623, when James I. sold new monopolies and 
levied anew arbitrary taxes on commerce, because, as he 
asserted, the constitution gave him the right to make com- 
mercial treaties. Soon after the Petition of Right had been 
obtained, Charles I. dissolved the parliament, and did not 
summon another for twelve years, attempting meanwhile by 
various illegal ways of raising money to supply the needs of 
the treasury, and thus paving the way for the loss of his life 
and crown. 

Is there not, then, reason enough to limit and retard power 
and prevent it from growth ? 



that I feel tempted to quote it. The reader will recollect that a painting was 
exhibited for the purpose of testing and exciting the Roman people : 

" ' Know you not,' at length said Pandulfo, * the easy and palpable meanir.g 
of this design ? Behold how the painter has presented to you a vast and storm y 
sea — mark how it waves.' 

" ' Speak louder — louder !' shouted the impatient crowd. 

•**Hush!' cried those in the immediate vicinity of Pandulfo; 'the worthy 
Signor is perfectly audible !' " 



CHAPTER VIII. 

JLegitimacy of Governments.— Governments de jure, de facto. — Divine Right.— 
Legitimacy of Governments with Reference to International Intercourse. — Can 
the Legitimacy of Government be ascertained by its Origin ? — Filmer, Locke, 
Rousseau, Haller. — The Origin of all States essentially the same; yet Infinity 
of Circumstances, which influence and modify its Development. — Ancient 
View on the Origin of Governments. — Aristotle, Polybius. — Various Theories. 
— Social Contract. — Various Pacta. — Hobbes, his Error, — Theocratic Theory. 

LXXXIV. Before the subject of limitation, or, as more 
fitly it might be called, of moderation of power, is treated, it 
will be necessary to consider some others. The first is the 
legitimacy of governments. What is a legitimate government, 
for which we have claimed power ? What are governments 
de jure, and what de facto ? 

If nations or states had never been considered the descend- 
ible property of the ruler and his family, and the ruler, there- 
fore, something above or without the state, and if people had 
not been dazzled by the supreme power, mistaking it for the 
government, and its change for a radical change of the state, 
while nevertheless such changes may take place with very 
little essential change in the great bulk of state institutions, 
as has been said before — the dispute about legitimate govern- 
ments would not have assumed the character which it actually 
has, in spite of all facts which history furnishes. After having 
settled the true meaning of state, sovereignty, government, 
public power, and supreme power, it is easier to arrive at a 
clearer notion of legitimate governments. 

Generally speaking, that government is legitimate which 
exists according to the fundamental laws and usages of the 
state, Le. the society; or, if these organic laws have been 
changed, the existing government is legitimate if the people 
may be considered as acquiescing in it. If the people com- 
posing the state are really satisfied, it is perfectly clear that 

275 



2/6 THE STATE. 

no one else can doubt the government's legitimacy, for, trite 
as the truth is, it is still of fundamental importance, that 
the government is simply and solely for the benefit of the 
society. But frequently the people are kept in such a state 
that it is impossible to ascertain whether the people can be 
considered as acquiescing in it, even if we put the most ex- 
tensive interpretation upon this word, or whether they will 
break forth the moment after the demise of the ruler, and 
destroy his statues, execrating his memory : 

" Descendunt statuae, restemque sequuntur, . . . 
Aidet adoratum populo caput, et crepat ingens 
Sejanus." Juvenal, x. 6o, seq. 

— a post-mortem censure repeated by the Romans against 
the pontiffs, — for instance, when Pope Paul IV. (Caraffa) died, 
in 1529, and the people dragged the head with the tiara of 
his statue through the mire, of which occurrence Mocenigo 
gives an account (Ranke, Popes, transL, i. 192). Suppose those 
who perform these acts are, as in some cases, e.g. under the 
Roman emperors, they must be considered, the correct ex- 
ponents of public opinion, all we can say is that the govern- 
ment, the agent of the state, may have committed many 
illegal acts, as agents of any sort may at times do. 

A government may grievously oppress the people for a 
series of years, and every one who could produce a favorable 
change might be a public benefactor. So long, however, as 
the government does exist, so long as the people prefer the 
oppression to the danger of a change, they must follow the 
oppressive government. A government fairly established, 
which includes acquiescence of the people, must be con- 
sidered as legal, which, however, does not exclude the right 
or expediency of changing it, inherent in the state or society. 

The dispute about the legitimacy of governments is un- 
profitable, and it is far better to inquire into what are wise oj 
ruinous, sound or rotten, just or unjust governments.' Thf 



X * Divine Right. The red republicans, Socialists, etc., de-nanded it as t 
condition of being a candidate for election to the chamber in 1850 (in Varis), 



GOVERNMENTS DE JURE, DE FACTO. 277 

peculiar theory of legitimacy maintained by the continental 
members of the Congress of Vienna is opposed to reason, 
history, and the course of policy which the proclaimers of 
that theory have been induced to adopt themselves. Louis 
Philippe was acknowledged, and his son intermarried with a 
reigning family. Napoleon was acknowledged by all powers, 
and received the hand of a daughter of an old imperial house. 
Talleyrand must be considered as the first who distinctly pro- 
nounced, at that congress, this remarkable theory, which at 
most can be adopted only by the devoutest legitimists. For 
the sake of order it is needful to agree to consider legitimate 
ail European rulers that now exist, and those who shall de- 
scend from them by legitimate intermarriage with ruling 
families. This, however, would amount to nothing more 
than an expedient, about which people may have different 
opinions; for the question. When does the ruler become legiti- 
mate ? is not settled. Talleyrand had nothing else to bring 
forward in favor of the Bourbons, when Napoleon had returned 
from Elba, and it had become clear to many members of the 
congress that the Bourbons were not the men of the French 
nation, and Austria inclined to readmit the emperor on the 
throne. The principle was effective ; it saved the Bourbons. 
The English, of course, have never acknowledged this prin- 
ciple, because their constitutional law is founded upon the 
distinct acknowledgment of the nation, that calls rulers to 
govern according to certain rules, principles, and funda- 
mental laws laid down by the people. But, even according 
to the fanciful theory of the legitimists themselves, who is the 
legitimate ruler at present (1838) in Spain ? 

LXXXV. All governments begin as so-called govern- 



among other things, that the candidate ought to acknowledge that the majority 
of the people, in universal suffrage, have not the right of establishing monarchy. 
Is this not a divine-right theory of republicanism, or divine right of reason^ as 
they probably would call it ? But does the republic exist on its own account, 
even though it may be the most mischievous government in a certain country 
at a certain period ? And if not, when does this divine right begin ? 



2/8 THE STATE, 

ments de facto, if the people do not actually and formally 
establish them. This is but rarely the case, and can be but 
rarely so, according to the political civilization of mankind. 
By this I do not mean that fact makes right, though fact has 
generally preceded right. The necessity of man's living in 
the state is so absolute that, whatever changes may take 
place, a legal relation will soon develop itself out of that 
which violence and fraud, or wisdom and devotedness, may 
have founded. The origin is not the thing. The first sounds 
from which the noblest idioms arose may have been utter- 
ances not much differing from those of animals, yet the subtle 
organization of the Greek idiom is something very different 
from a brutish means of communication. Society wants jural 
relations ; it cannot exist without them, and it cannot, there- 
fore, continually recur to its first elements, but must transform 
the given circumstances into jural relations. This shows the 
naturalness and energy of the state. So the people must live, 
and they want bread. If some one conquers the land and 
violently changes the owners of the soil, does not the same 
natural necessity of using the produce of that soil exist, and 
is it not lawful to buy the grain of the new possessor ? The 
urgent want of a state, the indispensable necessity of living 
within a state, is superior to all claims which may be set up 
as to the possession of power, just as the absolute want of 
nourishment is superior to any consideration of the title by 
which the land is held which produces it. 

If certain individuals had any distinct rights and claims of 
their own, derived from some source besides the necessity ot 
the society existing over which they claim the right to rule, 
then we might speak with propriety of legitimate monarchs 
in contradistinction to changes of the government effected or 
fairly acquiesced in by the people. According to our theory, 
given in previous chapters, this is impossible. Was Louis 
XVIII., when an exile in England, the legitimate monarch of 
France, and not Napoleon ? He certainly was not the mon- 
arch of France, and therefore could not be the legitimate. 
"A wise man," says Sophocles (CEdipus Rex, 587), " would 



KINGS DE FACTO. 2/^^ 

prize less a king's name than to do the works of a king." So 
soon as we give up the idea of rights personally and abso- 
lutely inherent in the monarch, and not dependent upon the 
laws of the land, the difficulty vanishes. This is not mere 
theory, but, in spite of all pretensions to the contrary, the 
people have always been obliged to acknowledge by facts that 
the state does not travel with the prince, but remains with 
society, with its everlasting legality and legitimacy, though a 
usurper may seize upon the supreme power and commit a 
number of illegal acts. We have seen already that Louis 
XVIII. could not help acknowledging the legal state of 
things which had grown up during his absence. It was not 
Louis XVIII. who had succeeded Louis XVII., who never 
reigned, that was received by France in 1814; he was a new 
ruler, really and truly succeeding Napoleon. Indeed, the 
idea that the monarch carries away with him the legality of 
the state is no less preposterous than it was in the emperor 
Frederic III. to count his amputated foot among the avulsa 
imperii: "now a leg has been cut off from the emperor and 
holy empire." (Griinbeck, 41.) When the elector of Hesse 
returned in 18 1 3 to his country, he declared the king of 
Westphalia, having been a usurper, to have possessed no 
right of selling the domains, and therefore took possession of 
them without any restitution of the sums for which they had 
been purchased. Prussia acknowledged the sales which the 
same kingdom of Westphalia had made of her domains. The 
Germanic diet decided against the elector and for the pur- 
chasers, and when that prince for years declined to yield 
to the diet, and all the endeavors even of Austria were in 
vain, the diet ordered the troops of the neighboring members 
of the confederacy to make the elector comply with its de- 
<;ision. 

LXXXVI. The English go still farther. "A king de facto 
and not de jure, or, in other words, a usurper [of the crown], is 
a king within the meaning of the statute which defines trea- 
son (25 Edw. III., c. 2), and therefore treasons committed 



28o THE STATE, 

against Henry VI. were punished under Edward IV., though 
all the line of Lancaster had been previously declared 
usurpers by act of parliament. But the most rightful heir of 
the crown, or king de jure and not de facte, who hath never 
had plenary possession of the throne, as was the case of the 
house of York during the three reigns of the line of Lancaster, 
is not a king within this statute against whom treason can be 
committed." This passage and its continuation (taken from 
Blackstone, iv. J^ et seq. ; see also Hallam, Constitutional His- 
tory of England, vol. i. chap. I, pp. 12, 13) show in the clearest 
possible light that, according to English views, the state and 
monarch are totally different, and that treason is not so pecu- 
liar a crime on account of inherent qualities in the royal 
person, but simply because the king is seated on the throne 
on account of the safety of the state or the benefit of society. 
I would refer, as to these momentous points, to Hallam's 
Constitutional History in general. Protection, the main 
object of the state, requires, as we have seen, power; but 
governments sometimes lose for some reason or other, by 
their own fault or not, all necessary power. Is then a power- 
less government still a legal government? that is, is a gov- 
ernment which cannot any longer perform that for which it 
exists, still legal ? If so, then the people exist for the govern- 
ment, not the government for the people. St. Zachary, the 
pope, sent word to Pepin, who had demanded an answer, 
" that he who had the power had better possess also the title 
of king." That I do not strive to establish the theory of 
mere power, as it rules in Asia, must appear from all that has 
been said, and will appear still more from the sequel. 

And let me add, how has mankind at large decided the 
matter ? Why is there universally made so broad a distinc- 
tion between treason against the government and any other 
crime ? Let a fugitive convicted of treason against his govern- 
ment at home go to any other country, is he treated as a 
criminal, received as a thief would be ? But let the fugitive 
have committed treason against his country and betrayed it, 
and will he still be received as a man with whose act society 



GOVERNMENTS DE JURE, DE FACTO. 28 1 

has nothing to do ? In the British Peerage it is mentioned 
of the ancestors of some peers that they were executed for 
treason. Would it be mentioned if they had been beheaded 
for an act of treason against their country ? The effect upon 
us when we learn that such or such a lord conspired against 
the king is very different from that produced by the treachery 
of some ministers of Charles 11. or the common murder com- 
mitted by Earl Ferrers. Is this universal difference not 
founded upon some true principle ? Surely it is. 

LXXXVII. Louisiana, bought in 1803 by the United States 
from the French, was, perhaps, illegally acquired ; for, besides 
the great probability that the inhabitants of Louisiana terri- 
tory were averse to the purchase and called upon the Ameri- 
cans to act up to their principle of popular liberty, congress 
had a very questionable constitutional right, if any, to spend 
fifteen millions of dollars for the purchase of foreign territory. 
But there are reasons and circumstances which carry along 
states and nations. To be securely and truly master of the 
western country it was necessary for the United States to 
possess the mouth of the Mississippi ; and would now any 
one insist upon the members from Louisiana being excluded, 
because Louisiana was acquired unconstitutionally ? With 
how many frauds and crimes has that country we now call 
France been brought together ! yet she forms at present a 
state with all legal requisites. Some call this the right of 
conquest. First, fraud is not conquest, and secondly, con- 
quest and right are entirely different things, for the very idea 
of conquest is that I acquire something by force and not by 
right. The fact is simply this : mankind rise gradually out 
of the state of force into that of reflection, in politics as in any 
other branch. But whatever these many different conditions 
may be, which affect the rise of various states, they could not 
rise and develop legal relations even out of the merest rela- 
tions of violence, if there did not exist the necessity of the 
state, i.e. of a jural society for men. The question of legiti- 
mate governments resolves itself into two : who shall be 



282 THE STATE. 

acknowledged by foxeign powers as the legitimate ruler of 
rulers, and which is the legitimate government at home. The 
first question, properly belonging to international law, has in 
practice always been decided according to fact ; that govern- 
ment which is fairly established is acknowledged, except it 
has been the interest of the foreign state not to do so. A 
sovereign nation is, because sovereign, free and independent, 
which involves that it has a right to establish any government 
it pleases. This does not exclude the necessity under which 
some states may be, of interfering with the affairs of another; 
for, whatever the theory may be, practically it is true that 
states are sometimes so closely connected and interlinked by 
various interests that they essentially affect each other, how- 
ever inconvenient it may be, or opposed to honestly professed 
principles. Self-preservation alone forces at times a state to 
interfere with the affairs of another. 

The second question is much simpler, if we recollect what 
has been said of the state, and that absolute or blind obedience 
to whatever authority is a moral incongruity. (See on Obe- 
dience to Laws.) If, however, the citizen must decide in a 
time of civil war, as at present (1837-1838) in Spain, he must 
make up his mind solely according to the question, which of 
the contending parties promises the comparatively best gov- 
ernment according to the principles on which it stands as a 
party, or on which it has set out in the contest, and which are, 
according to the natural course of things, most probably its 
inherent principles — to which it will owe its existence, not its 
proclaimed principles, or professions. For, be it repeated, no 
government, no dynasty, can possibly have any claims of its 
own, equivalent or opposed to those of the nation. If one of 
the contending parties is the government, according to the es- 
tablished laws, and yet the other party would be the eligible 
one according to the principle laid down, we must decide 
which will be for the more essential welfare of the state, to ad- 
here to the established laws, or to change them by the victory 
of the other party ; for no laws are immutable. Surely it would 
not have been wise or good to fight for the Merovingians 



ITS ORIGIN, 283 

against the Carlovinglans. (See Political and Legal Her- 
meneutics.) In the latter case the change may be partially 
or wholly a revolution. 

LXXXVIIL When the idea of the state became gradu- 
ally more clearly developed, as an institution with a character 
distinctly its own, and more and more separated from the 
ideas of force as well as that of the family union; when the 
state, in the progress of the ideas of justice, began to be sepa- 
rated from the dross of foreign matter, and men endeavored 
to sift that which is essential to the institution of the state from 
that which is accidental and unessential, it was but natural 
that various attempts should be made which were partially or 
wholly unsuccessful. It has happened thus with most insti- 
tutions. Mankind required thousands of years before so sim- 
ple an institution as that of the judiciary, or even that of penal 
jurisdiction, could be clearly developed and separated from 
the entangling notions, first of private vengeance, and after- 
wards of public vengeance. One of the erroneous notions of 
the state, yet easily accounted for in the course of civilization, 
was that we should arrive at the essential character of the 
state by investigating its origin, a misconception to which the 
most opposite parties sedulously adhered. Filmer and Locke, 
Hobbes, Rousseau, and Louis von Haller,^ have all in their 
turn believed it possible to ascertain the precise character of 
the state by this mode of inquiry, and every one of them has, 
as it now appears to us, unavoidably been obliged to recur to 
the strangest fictions. But when Euler endeavored to reduce 
the principles of music to mathematical laws, was he told that 
it was folly thus to ascertain the character of this soothing 
art, because the first people that beat the cymbal or the drum 
knew nothing of mathematics ? Is it wrong to say that music 
kindles the feeling of devotion, because the first conch that 
was blown may have served to animate people to contest 
and slaughter ? Or is it wrong to treat of music separately, 



" See the article on him in the Encyclopaedia Americana. 



284 THE STATE. 

and acknowledge it as an art by itself, because music began 
and rose in combination with dance and poetry ? Is music 
forever destined to be inseparably united with dancing, be- 
cause the first notions of rhythm, essential to music, mani- 
fested themselves in the dance ? Are the vine-dressers not 
allowed to give utterance to their happy feelings at the con 
elusion of a rich vintage, because all dances were, perhaps, 
originally of a religious or warlike character ? Do we learn 
anything with regard to the true character of the infinitesimal 
calculus or the celestial mechanics from the fact that all 
counting began with five fingers, so that it is believed that to 
five (to count by five) was the original expression for count- 
ing?^ Do we learn the true character of a.healthy, comfort- 
able, and safe house for a civilized man from the first tents, 
which consisted perhaps of nothing more than the skin which 
served also as a cloak ? We may learn, indeed, that man is 
left physically so unprotected that, be it against burning sun 
or piercing cold, ray or rain, he is always found with some 
shelter or other, and that to him therefore, naked but en- 
dowed with reason as he is, a shelter, a hut, a house, is a 
consequence as natural to his organization as the well-lined 
burrow of the northern animals, or indeed their fur itself 

LXXXIX. The state originated always in one and the 
same way, that is, by the conception of the idea of the just, 
or by the development of the jural relations among men. 
These relations, however, developed themselves, and continue 
to develop themselves, out of an infinity of given circum- 
stances and conditions, produced by family adhesion, force, 
fraud, vengeance, pride, deliberate debate, slavery, kindness, 
and love of liberty, conditions growing out of the life of 
mountaineers, or of herdsmen in the steppes, or in well- 
wooded plains, of countries with navigable rivers, inlets or 
barren wastes, islands or diked shores, or the summits of 
mountains,^ of hunters, agriculturists, mariners, merchants, or 



» Homer, Odyssey, iv. 412. 

2 See General Introduction to Heeren's Sketch of the Political History of An- 



ITS DIFFERENT ORIGIN. 285 

warriors, men that had, or men that desired property, of 
pirates or protectors of the weak,^ out of pure religion, or 
persecution.^ Hippocrates, Aristotle, Montesquieu, mention 
the influence which soil and climate exercise upon the social 
relations, and the state : they influence, but I do not say that 
they determine, the latter.3 The reason is very clear. All 
the various relations which may subsist between men make 
up that, which unites them into society and leads to jural re- 
lations, or, if protected by pronounced laws, legal relations ; 
the sum total of which is the state with its government. A 
state is always something gradually grown and of progressive 
development, for a man can no more step out of his time than 
he can help being the offspring of his progenitor. He can 
and will improve and develop, or change and rebuild, but in 
no instance can he possibly begin anew. And were he to 
break down everything, or to build from scattered fragments, 
still the materials he has are the fragments of broken institu- 
tions, and his mind is necessarily formed and fashioned by his 
time. " Nee temporis unius nee hominis esse constitutionem 
reipublicae," are the words of Cato. Cicero, de Republ., ii. 2i.'< 



cient Greece, 2d ed. of the translation, Oxford, 1834, for the decided influence 
which the physical state of Europe, climate as well as surface, had on all her 
domestic and political institutions. The whole superintendence of the dikes in 
Holland came, in the natural course of things, to be managed by elective boards, 
and Van Campen shows that this circumstance essentially contributed to the 
growth of republican notions, as the Alps led the Swiss mountaineers to theirs. 
Van Campen, History of the Netherlands, vol. ii. page 12, et seq. (in German, 
in Heeren and Uckert's series of histories.) 

* The French colony of St. Domingo, on the one hand, and the Knights of 
St. John (at Rhodes and Malta) on the other; for the latter formed a real state 
to all intents and purposes, with sovereign power. 

* Many sovereign bishoprics and archbishoprics ; the state of the Jesuits in 
Paraguay, and the annexation of Granada to Spain, or in fact Spain herself, and 
so many Mahomedan states. 

3 Dicta so true have been enlarged and carried out too far by many. See 
abundant instances in Falconer, Remarks on the Influence of Climate, Situation, 
Nature of Country, etc., 1781. 

4 * That which, in a more restricted sense, is called, in common parlance, a 
state, civitas, that is, stable society with government and laws, with fixed abodes 
in one particular country, necessarily begins only with the growth of landed 



286 THE STATE. 

As to the larger states, they have, in many instances, 
actually originated in a contract. When families increase 
into tribes, and tribes again subdivide themselves, continued 
war between them, chiefly on account of revenge for some 
injury, especially for homicide, is often the consequence. To 
avenge the death of a kinsman, or fellow-member of the tribe, 
is considered by all early nations as a sacred duty. As, how- 
ever, the various tribes of common origin cultivate the same 
religion, the celebration of common holy rites leads these 
distracted parts at certain seasons together. In order to cele- 
brate these religious feasts in peace, it is necessary to suspend 
hostilities; this leads to agreements of peace for a limited 
period, and these become, in the course of time, the founda- 
tions of national compacts. Finally, many of these confeder- 

property, in all larger states the most important part of property, to which 
our expression " real property" even now points. The early law of England 
took no cognizance of movable property (Blackstone, Com., ii. c. xxiv.), partly 
because there existed but little movable property claiming legislative attention, 
partly because the possession of land determined the relation of the individual to 
the political society in a far different degree from what the possession of any 
movable property could do. Heeren, in his Essay on the Rise and Progress of 
Political Theories, contained in the translation of his Historical Treatises, Oxford, 
1836, says, " The first, though not the only, object of a state is the security of 
property : now, although movables are just as much property as land, yet it is 
only where the latter has been appropriated that the right of property attains to 
its full importance ; and not only this, but the necessity of defining its different 
forms by laws is then for the first time perceived, because land is, from its nature, 
the only permanent object of this right." This last remark is too strong, and does 
not keep sufficiently in view the immense importance which, at later periods, 
personal property in the shape of moneyed capitals acquires. So likewise must 
we limit Heeren's views as to the historical beginning of states. Previous to the 
acquisition of landed property he maintains that no state exists, and actually says, 
*' no one would argue that the Calmucs, or the Kirgisian and Arabian Bedouins, 
form what is properly termed a state (ci vitas)." As to ci vitas, we have the asso- 
ciation of a city, a compact community, in our mind, and if we may not ascribe 
to those nations what is " properly termed a state," most assuredly we must 
ascribe to them what is philosophically termed a state, else I do not know what 
we ought to call their jural society. This certainly exists, for they have laws, 
they judge delinquents, they declare war, they maintain right, in their fashion 
indeed, but still right and jural relations they do maintain. To be brief, have 
they or have they not z. government ? If Heeren is right in this point, then I 
believe the expre?sion patriarchal government to involve a contradiction. 



VARIOUS THEORIES. 287 

acies grow into more consolidated states. Yet these com- 
pacts are not the first origins of the state ; the state, that is, 
political society, exists already. The history of Sweden 
furnishes a striking example of this process of political gen- 
eration. 

XC. The chief theories respecting the origin of the state 
are those which start from a previous authority, from force, 
a religion (or priesthood), or contract. I take the latter first. 
Ancient and modern authors, in order to explain the right 
which a government has over the governed, have asserted 
that the state was founded upon a contract of its members for 
mutual protection and assistance, for which each one is will- 
ing to give up what has been termed natural liberty, a state in 
which man was supposed to depend upon his own will alone. 
Some writers, and among them are scholars of great distinc- 
tion, believe not only in the theory of an implied or tacit con- 
tract, but that all political law (or state law) has grown out of 
the germ to be found in the contract of a certain number of 
tribes.^ Aristotle says distinctly, in his Politics, that the regal 
power has been founded by the will of the people. Plato's 
view of the origin of the state coincides with that of Aris- 
totle. Polybius calls royalty {^aaiXtia) only that government 
which has originated out of the free will of the people, and 
which subsists more by public opinion and acknowledgment 
than by force and fear ; in the contrary case he calls it mon- 
archy. (Polybius, vi. 5, seq.) And well may be mentioned 
here again Herodotus (i. 96), where he gives an account of 
the origin of the monarchy of Deioces among the Medians, 
out of free choice of the people; for, whether the event 
actually occurred in this manner or not, the passage suffi- 
ciently shows the view of the ancients.^ See book ii. sect. 
xxxi. n. 3. 



* Staatsrecht des Alterthums, by Charles D. Hiillmann, Cologne, 1820, p. 59. 
Compare also his Fundamental Constitution of Rome, Bonn, 1832, p. 22, et seq. 
Mr. Hiillmann is professor of history in the University of Bonn. 

* I refer the reader to the very thorough work, Darstellung des Griech. Staats- 



288 THE STATE. 

XCI. If we understand, by the theory of the political oi 
civil contract, that view of the state according to which it is a 
politically organized society of members, each of whom stands 
in a jural relation to every other member of the society, there 
fore, in this point of view, in a relation of equality, namely, 
the equality of justice; and if we farther mean to express 
by civil contract that no jural relation, be it between the 
mightiest and the weakest, can possibly exist without a reci- 
procity of obligations (for the contrary destroys the idea of 
obligation, since obligation can- only exist in moral beings, 
and obligation if on one side only would destroy the char- 
acter of a moral being with a moral value of his own), that 
the state is a society of common and mutual weal, guaran- 
teed by the law, which one of the ancients calls " communis 
reipublicse sponsio ;" if we finally mean by civil contract that 
those fundamental rules according to which some nations 
govern themselves are binding upon both parties until 
changed by the state, i.e. by society with inherent sovereignty 
— then the theory of the civil compact, or contract, is correct, 
and the only one which gives to the state its true, that is, 
jural character, and thus insures its lawful continuation. If, 
however, we imagine by civil contract an actual agreement 
made at some definite period between human beings, other- 
wise either running wild and harming one another, or pos- 
sessed of well-developed reflection, who enter, after mature 
consideration, into so solemn a covenant (the one supposed 
by Hobbes, the other by Locke), and that a contract of this 
sort with a particular government or dynasty is binding for- 
ever; nay, if we theorize this idea so far as to adopt three 



verfassungen, by F. W. Tittmann, Leipsic, 1822, p. 80, et seq. ; also to W. 
Wachsmuth, Hellenic Archgeology from a Political Point of View, Halle, 1826, 
4 vols., vol. i. pp. 92 and lOO — a work of vast research. 

That all the works of distinction on Greece and Rome, as those of Heeren, 
Miiller, Gibbon, Niebuhr, also Guizot, etc., are important here, need not be 
mentioned. I have not cited Cicero De Republica, for, as is the case in nearly 
all the writings of this author, he chiefly follows the Greeks when he discusses 
philosophical points. 



MAN NATURALLY CONFIDING. 289 

different compacts — the pactum uniojtis, according to which 
the individuals determine by a majority of votes the end 
and object of the union or society ; the pactum ordinationis, 
according to which the ruler and the fundamental laws 
are designated ; and the pactum subjectionis, by which the 
contracting parties subject themselves and all future mem- 
bers to this ruler or government, as Puffendorf represented 
it — then the idea of the contract is radically wrong, and 
leads to dangerous conclusions, favoring tyranny or licen- 
tiousness. 

XCII. First of all we have to imagine man in a supposed 
state of 'nature, in which we never find him, nor is it possible 
to say which of the two early stages of human society is 
the state of nature, when, as Hobbes says,^ every one wars 
with every one, for which we have, as he says, to imagine a 
number of men just created. But politics is not an imagina- 
tive science, and we can find nowhere such a number of men. 
Or we must imagine a society living in peace but obliged to 
protect themselves against others. Hobbes says that every 
man naturally distrusts every other, and among other things he 
points at our locks and keys as a proof of his position. But 
he forgets that the knowledge or suspicion of one thief exist- 
ing in a community of twenty thousand would induce all the 
honest members to make use of locks. On the contrary, man 
trusts a thousand times before he distrusts once. Our whole 
life and intercourse are essentially founded upon trust ; look 
around you, and you will find innumerable instances. Nor is 



« " Seeing then to the ofifensiveness of man's nature one to another, there is 
added a right of everything, whereby one man invadeth with right, and anothei 
man with right resists, and men live thereby in perpetual diffidence, and study 
how to preoccupate each other, the estate of men in this natural liberty is thr 
estate of war," etc. Hobbes, De Corpore Politico, part i. chap. i. 

The same great author says, in his Leviathan, part i. (Of Man), chap, xiii., 
" Again, men have no pleasure in keeping company, where there is no power 
able to overawe them all." Yet men will always congregate, even when public 
power has been relaxed. 

19 



290 THE STATE, 

this so only because we live in a regulated society and polit- 
ically protected. Caille started from the Senegal and worked 
his way to Timbuctoo and back to Fez through the desert, 
single-handed, without protection. He undoubtedly knew 
that there was great danger in his undertaking, but, on the 
other hand, was not his perilous journey mainly and essen- 
tially undertaken upon the idea of trust in utter strangers, 
that had not been visited by Europeans before, and had not 
even a common color with him ? He trusted because they 
were men, and for no other possible reason, and considered 
all the chances of perishing by the hands of the Africans, 
however great the danger, still as exceptions. 

If a stranger tells you something, to what do you incline, 
to believe or disbelieve him? You only disbelieve if there are 
particular reasons which induce you to do so ; if none, you 
believe, or incline to believe. Men, like animals, have to 
learn distrust ; their nature is confiding.^ Hobbes, moreover, 
contradicts himself, for does not every idea of a compact show 
that each one has confidence in a greater number than he dis- 
trusts? His very idea is founded on trust. He who has 
seen a body of troops which for some reason or other is 
seized with distrust in the officers and in one another, or 
which, composed of heterogeneous elements, has not yet ar- 
rived at mutual trust, knows how futile any attempt is to 
keep them together even by force. There is no imaginable 
force that can keep a body of men united, be it for whatever 
purpose, if they are not first morally united, be this upon 



•■ Clapperton found the cranes in Africa without any fear. Lieutenant Paul- 
ding (Cruise of the U. S. Schooner Dolphin, New York, 1831) caught the birds on 
the Marquesas Islands with his hand. Bougainville found, in 1765, foxes and 
hares on the Falkland Islands, tame. Turkeys and deer, though hunted by the 
Indians, were comparatively tame when the Puritans landed in New England. 
The works of Cook, Kotzebue, or any circumnavigator state the same. So like- 
wise many reports of the first Spaniards who went to South America. What is 
more, the animal learns to regulate its caution according to the habitual danger. 
A hen flies fr^m the boy, but only to a certain distance. Many animals in 
the forest flee from man with a gun, but show comparative confidence if he be 
unarmed. 



1 



HOBBES. 291 

habit, prejudice, or even for criminal purposes : the union 
must be mental in its origin. 

XCIII. Secondly, it is thought by this contract to establish 
the reason why man shall obey the laws, why every member 
is bound to acknowledge public authority, even though he 
dislike it. No one can study the writers on natural and 
political law without perceiving at once that, whether they 
were always aware of it or not, when they spoke of govern- 
ment, as I have said already, the idea of the monarch was 
present in their minds. Hence government appeared to them 
as something separate from, opposed in a degree to, the 
people: in short, they did not conceive society as such, but 
people as the ruled part and government as the ruling, both 
materially separate and distinct. Hence the many incon- 
gruities in writers whom we have nevertheless to acknowl- 
edge as minds of great power and grasp, and hence, likewise, 
the totally opposite ends which they have arrived at by the 
same means. Hobbes, by his covenant, arrives at the most 
absolute monarchy, in which the ruler has power over life, 
death, and religion — over everything ; and Locke arrives at 
a limited monarchy. He, indeed, made a great step towards 
the true understanding of the real source of power (which 
power Bodin, see chap, ix., not to speak of the ancients, had 
found already in the people) by acknowledging, at least, the 
family in that supposed state of nature, and making the cove- 
nant only between the heads of families, by which therefore 
he escapes the absolute submission of Hobbes. (See Locke's 
Two Treatises of Government.) If I thus show in what pre- 
vious writers have, as I believe, erred, I nevertheless acknowl- 
edge with gratitude their great merit, and believe, moreover, 
that political science could hardly hdve developed itself without 
passing through these gradual stages. Hobbes, whatever erro- 
neous consequences he may have derived from his supposed 
state of nature and consequent compact, yet made a great 
step, indeed, towards bringing home power to its true seat. 
He brought power, at least, to a human origin, which was no 



292 



THE STATE. 



mean service to rational politics. Without it, the state would 
not even now be acknowledged essentially a jural institution. 

XCIV. " No law can be made, till they (men) have agreed 
upon the person that shall make it," says Hobbes, in his Le- 
viathan, part i. chap. xiii. But is the agreement to invest a 
man with so important a trust as that of making laws for 
others, no law itself? It is the most important law of all — 
the fundamental law. And whence do men derive the power 
to elect, in other words, to fix, by a majority of voices, upon 
a man that shall rule ? Where is the right to bind the 
minority ? Here is the point that can never be solved by the 
theory of the contract, taken in the sense as I treat of it here. 
Even where the men assembled and joined, as in the case 
of the Rhode Island planters, previously mentioned, they 
never doubted for a moment that the majority have the right 
over the minority, which destroys, however, the idea of the 
contract, for a contract requires a voluntary agreeing in all 
parties, and the minority would not be voluntary parties. 
This, again, is a case in which a word has misled : " the 
people make a contract," but the people are not yet an ag- 
gregate. Every one is still insulated for himself. Each 
one, therefore, must agree for himself 



* * As to the history of the idea that power comes from and is granted by the 
people, I will remark here only, with regard to England, that Hooker, who died 
half a century before Hobbes's Leviathan was published, makes in his excellent 
Ecclesiastical Polity this remark : " So that in a word all public regiment, of 
what kind soever, seemeth evidently to have arisen from deliberate advice, con- 
sultation, and composition between men, judging it convenient and behoveful ; 
there being no impossibility in nature, considered by itself, but that men might 
have lived without any public regiment" (Eccl. Polit., i.) : yet he speaks of 
** times wherein there was as yet no manner of public regiment" (lb.). Practically 
the consent of the people we find acknowledged in the Parliamentary Declara- 
tion of 1648 : " They (parliament) suppose it will not be denied that the first in- 
stitution of the office of a king in this nation was by agreement of the people, 
who chose one to that office for the protection and good of those who chose him, 
and for their better government, according to such laws as they did consent 
unto." Translator of Heeren*s Essay on the Rise, Progress, etc., of Political 
Theories, in his Historical Treatises, Oxford, 1836, p. 142. 



UNTENABLENESS OF THE CONTRACT. 293 

Whence do the men derive the right to contract for women, 
children, and servants ? If in that so-called state of nature 
all are utterly free and unconnected with one another, whence 
above all the right to contract for those that do not yet live ? 
To contract for them after the laws of the land have once 
been established may be right, for private purposes, because 
it may be expedient in order to avoid certain evils ; in short, 
it may be right to give the right of contracting for unborn 
generations, if the sovereign power inherent in society de- 
clares it to be right, but it involves an absurdity if this sov- 
ereign power itself is the object. For the object of the phi- 
losopher was to establish legality and the right of demanding 
obedience on the side of the authority by mutual consent, 
which, therefore, is the first foundation of the authority, and 
yet here some persons do establish an authority which shall 
have power without the consent of some. The assertion that 
the original contractors represent the unborn generations, is 
an unmeaning evasion, for that which is not cannot be repre- 
sented. If we nevertheless use this phrase, it has significance 
only so far as a positive law gives meaning to it, but other- 
wise it has none. Moreover, the idea of representation in the 
first contractors is again a contradiction, because representa- 
tion requires previous arrangement, legalization. How could 
my forefather contract away my absolute freedom? To keep 
then the state in existence, it would be necessary to repeat 
this contract from time to time, say every twenty years. In 
the mean time, no one that had been born after his father had 
consented to it, and before he personally had consented to it 
himself, would be amenable to the laws. To be sure, accord- 
ing to the believers in a primordial state of nature, we should 
have the right to molest, torment, or kill them like wild 
beasts. Perhaps it might be proposed that they should wear 
a distinguishing mark, a cap of dog-skin, as the enslaved 
helots were forced to do by the Spartans.^ It would be for 



« [This dog-skin cap, however, was no other than the ancient head-covering, 
worn by Laertes in the Odyssey and by the Arcadians. The compulsion was the 
grievance. See Miiller, Dorier, ii. 40.] 



294 ^^^ STATE. 

the benefit of those natural men, to show that no constable 
had any right to seize them, and for the artificial men or citi- 
zens, that they might raise the hue and cry as soon as such a 
political non-juror showed himself. In what a state of things 
all society would be thrown every twenty years, when the 
contract must be renewed ! All property at an end, all insti- 
tutions broken up, all lives at the disposal of every one, all 
law dissolved, every one a perfect Adam in right and might, 
everything and every one belonging to every one — a state of 
savageness with all the horrors of a dense population and 
minds refined, stirred, and excited by civilization, without the 
restraint and moderation of law, simultaneously and corre- 
spondingly developed. And, after the contract should have 
been renewed, what hunting down and killing of the non- 
contractors ! The new state must needs begin with offering 
a reward for the head of every non-conformist, as now we 
offer a pound for a wolf-skin or some shillings for a crow's 
head ; or, as of old, a price was offered for a dead Indian. 
For it is evident we have no right whatever to judge by our 
laws the proud non-contractor who, in the full consciousness 
of his natural lordship and absolute freedom, spurns the idea 
of becoming an abject contractor. As to relations with other 
nations, we should acknowledge piracy as the only one , for 
have they signed our bond, have we theirs ? Can any state 
of physical and mental progressive development of our 
society or nation be imagined under these circumstances ? 

It is surprising that these necessary consequences of the 
theory of the contract, which would be precisely as I have 
represented them, have not shown before the untenableness 
of this theory. Indeed, it actually led a great statesman to 
perceive, in a measure, its consequences, for he says, in one 
of his letters, that, properly speaking, the contract ought to 
be renewed from time to time. How long ought the bind- 
ing period to last ? 

I repeat, then, the state exists by necessity ; not this or that 
particular state, which has been modified by a thousand 
favorable or untoward conditions, geographical, historical, 



THEOCRATIC THEORY, 295 

social, religious, or scientific ; but always does the state exist, 
however corrupt or pure. 

XCV. A few words on the other theories of the origin of 
governments, mentioned above. Sir Robert Filmer, who died 
about 1688, wrote a work, Patriarcha, published in 1680, in 
which he derives all authority from the fact that Adam, the 
first monarch, was likewise absolute master of his children ; 
hence the people are naturally and from their births subject 
to their princes, when the monarch comes to be separated 
from the natural father. Whitaker again started this theory, 
about fifty years ago, and, strange to say, not without attract- 
ing some attention. Let us associate the name of Filmer 
rather with the fact that he wrote at so early a period against 
witch trials, than with this more than untenable theory. Men 
like Filmer saw that by the absolute contract it is impossible 
to gain a sure foundation for political authority, and therefore 
sought for a natural foundation of power, committing, how- 
ever, in turn, the common mistake of confounding power, 
government, and state. 

Others explain the origin of the state on theocratic grounds. 
All government, according to them, descends from the priest, 
that is, the authority of God proclaimed by the priest, or, 
all political relations originate from religion, the primary 
and fundamental relation of all society. It is a view which, 
incredible as it may sound, has found, of late, again some 
prominent advocates. I have already answered this theory : 
religion is not justice, the church is not the state. The fact 
that we find the character of the priest, father, and ruler 
blended in the rudest stages of society, if we choose to call 
sacrificing for the family, distinct priesthood, and giving rules 
for the house, ruling, is no proof that the state originated on 
theocratic grounds. There can be no doubt but that those 
primitive rulers were likewise the butchers and cooks for 
their family or little clan. Is it on that account philosophical 
to say all monarchy and civil government are derived from 
butchery or cookery ? 



296 THE STATE. 

XCVI. Finally, some give as the origin of the state, force 
alone. They say, force makes right, which is about as true 
as that negative makes positive. 

Many states have been conquered, usurpers have estab- 
lished dynasties of flourishing kingdoms ; but because they 
have done so it is not proved that they originated or consti- 
tuted the state. This confusion of ideas, however, has been 
mentioned already. 

Charles Louis von Haller has acquired notoriety by his 
work entitled Restoration of Political Science, or Theory of 
the natural-social State opposed to the Chimera of the arti- 
ficial-civil State (1820). The substance of his theory is this, 
that the government over men depends upon the will of God, 
and is known by natural (that is, physical) superiority (power), 
excluding therefore the jural principle. According to him, 
the prince is before the people, as the master is before the 
slave. 



CHAPTER IX. 

View of the Origin and Character of the State in the Middle Ages. — Dante.—- 
Thomas More. — Bodinus. — The Netherlands first proclaim broadly that Mon- 
archs are for the Benefit of the People, and may be deposed. — The Develop- 
ment of the Idea of the Sovereignty of the People owing to the Jesuits. — 
William Allen. — Persons. — Bellarmin. — ^Jesuits defend Regicide under certain 
Circumstances. — Mariana. — Suarez. — Luther. — Calvin. — Bacon. — English 
Revolution a great Period for liberal Ideas in Politics. — Puffendorf. — Leib- 
nitz. — Montesquieu. — Hume. — Quesnay. — Turgot and Malherbes. — Mably. — 
Adam Smith. — Blackstone. — Delolme. — Bentham. — Hallam. — Revolution of 
1830. 

XCVII. The views which the ancients took of the origin 
of the state have been briefly mentioned, and I shall return to 
the subject. The state of things in the middle ages was such 
that political law could not be expected to be much cultivated. 
Views derived from the Old Testament, combined with the 
overspreading system of the church, and the religious princi- 
ple as one of the most active agents in all public life in those 
periods, very naturally stood in the way of free inquiry into 
the elements of political law. The theory, however, differed 
more from practice during the middle ages than probably at 
any other period. On the one hand it was insisted upon that, 
as it is said in Proverbs viii. 15, " Per me reges regnant," per- 
fect obedience is due to the monarchs, so long as they are 
faithful to the orthodox church; on the other hand, mon- 
archs were nearly all the time contending with their vassals. 

Dante's De Monarchia can hardly be mentioned here. 
Machiavelli touches upon many subjects relating to the state 
in his History of Florence, his Discourses on the First Dec- 
ade of Livy, and his Prince. He was a man of most un- 
common and penetrating mind;' but we cannot enumerate 



' This powerful and grasping mind is, in my opinion, greatly misunderstood 
by a \ast majority of all who know of his name. I may be excused, therefore, 

297 



298 



THE STATE. 



him with propriety among those who have directly promoted 
public or political law. Chancellor Sir Thomas More (Morus) 
attracted much attention by his Utopia, in which many ques- 
tions of the highest importance to the citizen are discussed in 
a spirit far in advance of his time. Thomas More recom- 
mended, under Henry VIII., perfect freedom of conscience, 
which was a thing absolutely unknown then and for centuries 
afterwards. Joannes Bodinus or Bodin, a Frenchman, who 
was member of the States-General assembled at Blois in 1576, 
wrote Six Livres de la RepJiblique, also in Latin, a work of 
much merit,^ which to this day will not be studied without 
great profit, though it is affected by that peculiar and deceiv- 
ing reasoning from analogy and on similes which continued 
to influence the minds even of very superior men long aftei 
this writer, and cannot be said to have vanished entirely even 
in our days, though the reform produced by Bacon has had a 
strong tendency to rend these tissues of false ratiocination." 
Thus, Bodm's sixth book speaks of the distributive, commu- 
tative, and harmonic justice, shows that "royal monarchy" 
is harmony, and goes on to speak of the octave, fifth, and 
third in the state. This disposition to reason by analogy, 
and desire of finding the system and order of one thing always 
reflected in another, and fondness for logical symmetry — a 



f6r referring to the article on him in the Encyclopaedia Americana, where I have 
indicated my opinion of this great man. 

* Les Six Livres de la R6publique de J. Bodin, Angevin, Paris, 1580. (There 
is in the Congress library at Washington a copy of this date, vi^hich has belonged 
to Mr. Jefferson, with pencil-marks by his hand.) See Introduction g6n6rale ^ 
I'Histoire du Droit, par M. Lerminier, Avocat k la Cour royale de Paris, 1829, 
chap. v. 

« As an instance may be mentioned the Monarchy of Man, by Sir John Elii^t, 
appended to his life by John Foster, in the second volume of British Statesmen, in 
Laidner's Cabinet Cyclopaedia. Nor are Sydney's writings at all free from this 
analogic train of ideas. Astrology, with all its macrocosm and microcosm, had, 
of course, a most powerful influence. I repeat for the youthful and ardent student, 
that too much care cannot be taken against confounding illustration with argu- 
ment, the explanation with the basis. Quite different from misleading and 
seducing analogy is the zealously tracing out the same principle in apparently 
or really different spheres. It is a delightful employment of man's mind. 



MANIFESTO OF THE DUTCH. 



299 



desire correct in its origin, namely, to find a harmony and 
correspondence in all things — strangely induced men to con- 
found all departments, or, which amounts to the same thing, 
was in the way of properly separating them. 

The commission by which Columbus was appointed Ad- 
miral of the Indies, and which contains the agreement be- 
tween the monarch of Spain and himself regarding the ex- 
pected profits, as recorded in the Codice Diplomatico (page 
47, et seq.) already mentioned, begins with a purely theological 
declaration and essay on the Holy Trinity, the Virgin Mary, 
St. James, etc. It then treats of the order of things, the vicars 
of God (monarchs), with a discussion on the different species 
of justice, on three closely-printed pages, without any connec- 
tion or reference whatever to the main subject. 

XCVIII. " That mysterie, the prerogative of kings, which 
is a point so tender as it will hardly bear mention," as the 
noble Eliot wrote in the Tower (page 134 of the work men- 
tioned in the last note), when imprisoned as the devoted 
advocate of a pure cause, was, nevertheless, frequently eluci- 
dated by the light of discerning minds, at an early period. 
Thus, there are some powerful sentences in Bracton. Yet 
the principle that monarchs are for the benefit of the people, 
and may be deposed if palpably and perseveringly opposed 
to their interest, was for the first time distinctly proclaimed 
and boldly acted out, in modern times, on a broad scale, 
when the Netherlands declared themselves independent of 
the crown of Spain. 

The manifesto of the Utrecht Union, dated Hague, July 26, 
1 58 1, against the king of Spain, says that a prince is placed 
by God over his subjects to protect and watch over them, 
and that the subjects are not made for the benefit of the 
prince, to do slave service unto him, but the prince is made 
for the sake of the subjects, without whom he is no prince, to 
rule them fairly and paternally. If he neglect this, he must 
be considered not a ruler, but a tyrant, and in this case the 
subjects, and their representatives the estates, have the right 



300 



THE STATE. 



to place some one else for their protection, especially after 
they have fruitlessly attempted to turn him from his tyran- 
nical measures, and if, therefore, they have no other means of 
protecting their native liberty, for which they shall, according 
to the laws of nature, pledge their lives and all they possess.* 
But the development of this just idea into a theory was des- 
tined to come from a quarter from which it might have least 
been expected — from the Jesuits, one of the fundamental prin- 
ciples of whose constitution was absolute obedience to the 
pope. Thus it was this very absolute obedience to the pope, 
and the absolute supremacy of the true church, that is, of the 
Roman Catholic church, over all temporal government, which 
led them to the theory of the sovereignty of the people. 

The English monarch had been declared supreme head of 
the Anglican church. William Allen, a Jesuit, consequently 
declares in his writing, Ad Persecutores Anglos pro Christianis 
Responsio (1582), "Si reges deo et dei populo fidem datam 
fregerint, vicissim populo non solum permittitur, sed etiam ab 
eo requiritur ut jubente Christi vicario, supremo nimirum 
populorum omnium pastore, ipse quoque fidem datam tali 
principi non servet." Persons, or Parsons, another English 
Jesuit of the time, adheres to the same principle, for instance, 
in his Andreae Philopatri ad Elizabethae Reginae Edictum 
Responsio.'' The distinguished Bellarmin adopted these 
views, and while he maintains, on the one hand, that the 
pope is supreme to all, to the council of the church and 
monarchs, whom, if religion require it, he may rightfully de- 



* The whole manifesto in Meteren, History of the Netherlands, f. 185, et t>eq. 

* If a monarch forsakes the Catholic religion, to M'hich he is bound by his 
oaptismal vow and coronation oath, the subjects must drive him away. No. 162: 
*' Non tantum licet, sed summa etiam juris divini necessitate ac prsecepto, imo 
conscientise vinculo arctissimo et extremo animaram suarum periculo ac dis- 
crimine christianis omnibus hoc ipsum incumbit, si prsestare rem possunt." No. 
160 : " Incumbit vero tum maxime, . . . cum res jam ab ecclesia ac supremo ejus 
moderatore, pontifice nimirum Romano, judicata est : ad ilium enim ex officio 
pertinet religionis ac divini cultus incolumitati prospicere et leprosos a mundis 
ne inficiantur secernere." — See the Biographia Bri':annica respecting the life of 
Persons. 



THE JESUITS. 301 

pose (see, for instance, his De Conciliorum Autoritate, c. 17, 
and De Romano Pontifice, v. iii.), he distinctly lays down, on 
the other hand, that " Jus divinum nulli homini particular! 
dedit hanc potestatern : ergo dedit multitudini : igitur potestas 
totius est multitudinis." And Mariana, one of the most dis- 
tinguished Jesuit writers, says, " Neque respublica ita in prin- 
cipem jura potestatis transtulit, ut non sibi majorem reservarit 
potestatem." And Mariana was a Spaniard too. So willing 
are people to acknowledge any theory which is favorable to 
the objects next in view — at that time the deposition of Eliza- 
beth, and in France the dethronement of Henry III. The 
combination is as singular as that the Belgian Catholics, who 
so long assisted the princes in their attempts to subdue the 
free Dutch, and were always for monarchy opposite to the 
republican Dutch, did lately profess the utmost liberal polit- 
ical views, in conjunction with the strictest Roman religious 
professions, far too ultra-roman for most other Catholics, 
merely because opposed to the Protestant Dutch. 

But the Jesuits went farther : they maintained the lawf ul- 
ness of regicide if a tyrant or perverse heretic has possession 
of the throne. Those Catholics who professed that obedience 
is due to a lawful prince, though a heretic, were styled by 
them royalists and most severely attacked. See for instance 
Roswede, De Fide Haeret. servanda, Antwerp, 1610. The 
University of France reproached the Jesuits, in 1626, with 
having produced thirty authors who had preached disobe- 
dience to the prince if the pope orders it, and even regicide, 
because he is no longer king after excommunication. Suarez, 
]^efensio Fidei Catholicae, lib. b. c. 4, Col., 1614, says, " Posse 
regem privari regno, etiam ilium interficiendo. ... Si papa 
regem deponat, ab illis poterit expelli vel interfici, quibus 
ipse id commiserit. ... Nam rex ipse jam non est rex, etc." 
Mariana, Heissius (Ad. Aphorismos Doctrinae Jesuitar. De- 
clarat. Apolog., Ingolstadt, 1609), Vasquez, Cotton, Molina, 
Keller, Lessius, Ribadeneyra, De las Salas, and numerous 
others, too many to be mentioned here, are of the same 
opinion. 



302 



THE STATE. 



It is a remarkable fact that when the three French estates 
were met in diet, in 1 6 14, the third estate proposed a law ac- 
cording to which the king should be declared to possess his 
right of God, and that no one has a right to absolve his sub- 
jects of their allegiance, upon which every officer should 
take an oath, and that the clergy and after them the nobility 
opposed this proposition, because, as Cardinal du Perron said, 
subjects are free of their allegiance if the king becomes a 
heretic, adopts the religion of Mahomet or the doctrine of 
Arius. And this was after Henry IV. had been murdered by 
Ravaillac in 1610. It was precisely the same contest which 
obliged the English to insert in their declaration of right the 
oath forswearing " that damnable doctrine and position, that 
princes excommunicated or deposed by the pope, or any 
authority of the see of Rome, may be deprived or murdered 
by their subjects, or any other whatsoever, etc." 

Luther, born, bred, and living in a monarchy, having to 
contend with various popular religious excesses, from an 
early period of the Reformation, and witnessing a sanguinary 
civil war (the peasant war), discarded all idea of making the 
extent or duration of obedience to the magistracy dependent 
in any way upon popular will. It seems in his writings that 
the idea of magistracy presented itself to his mind solely, and 
probably unconsciously to him, under the form of unlimited 
monarchy. He demanded almost unlimited obedience to the 
monarch in all civil matters, because he strictly severed re- 
ligion from temporal government. This is his reason. It 
was different with Calvin. Living in a republic as he did, 
and in a small community, in which naturally and necessarily 
the various spheres of public action do not present themselves 
as strictly separated from one another as they may do in 
larger empires, he infused in his writings more of a repub- 
lican spirit, and a desire to have the state influenced by re- 
ligious fervor. Hence his followers in Holland, England, and 
Scotland did the same, Calvin relates in the preface to his 
first catechism — not the well-known little Geneva catechism 
— that he labored to induce the senate publicly to acknowl- 



LUTHER AND CALVIN. 305 

edge it. He succeeded, and the citizens of Geneva were 
called upon, ten by ten, to take their oath upon it. " This 
action," adds Mr. Henry, " may be considered as the founda- 
tion of the later theocratic government. The citizens took 
the oath upon this confession as citizens, and he who opposed 
it, openly or not, was liable to civil and ecclesiastic penalty." ' 
When Calvin settled at Geneva, the city was already rent by 
religious parties and disturbed by great commotions, which 
naturally influenced Calvin's actions. 

We have seen what the doctrine of the Jesuits was respect- 
ing heretical princes. The Puritans, regarding episcopacy 
with passionate aversion, so that it appeared to them one of 
the worst species of heresies, maintained similar views as to 
heretical monarchs, though they did not agree with the 
Jesuits as to the lawfulness of regicide or tyrannicide. One 
of their writers, supposed to have been Lord Keeper Pucker- 
ing, says, " that all persons, as well as meaner persons, must 
willingly be ruled and governed, and must obey those whom 
God has set over them, that it is the just authority of eccle- 
siastical magistrates, and must lick the dust off the feet of 
the church. That her majesty, being a child of the church, 
is subject to censures of excommunication by their elderships 
as well as any other people. That no man ought to aid, 
comfort, salute, or obey an excommunicated person ; and 
that as long as any person is excommunicated, he cannot 
exercise the magistracy." (Brodie, vol. i. page 140, etc., 
where the notes are especially interesting and important.) 
The Covenanters and Presbyterians held similar views. It 
was observed at the time that their writers, Knox, Buchanan, 
Goodman, and others, singularly coincided in some mo- 
mentous principles with the Jesuits. Collier, ad an. 1638.^ 

* Page 175, vol. i. of the Life of John Calvin, the great Refonner, by Paul 
Henry, Pastor in Berlin, Hamburg, 1835. In German. Mr. Henry has made 
use of MSS. and unprinted letters of Calvin's in the libraries of Geneva and 
Zurich. Altogether the work is the production of great industry. The whole 
peculiar position of Geneva during the beginning of the Reformation may be 
seen from page 136 et seq, 

a See an interesting notice of various Puritan and Presbyterian writers on this 



304 



THE STATE, 



The difference between Luther and Calvin, as to the points 
mentioned, is this: The German reformer, granting the fullest 
possible temporal power to the state, claimed full liberty in 
religious matters, and he almost alone in his whole age 
stands forth, as we have seen, an enemy to religious persecu- 
tion, acting on principles which but centuries later became 
acknowledged.^ Calvin, striving to unite religion and politics, 
makes religion absorb everything, and the church, that is, the 
ministers with the *' saints," nearly supersede the state. Hence 
every deviation from the strict Calvinistic doctrine appeared 
to his followers as a state offence ; hence the deep-rooted 
spirit of exclusiveness in his followers, for a long period in 
history. 

XCIX. However erroneous and dangerous for the peace of 
society these views were, they nevertheless aided in arriving 
at the point that there is a principle above the monarch, 
that his right is not personally inherent, but only officially 
vested in him, and that the tie between prince and subjects is 
not absolute and indissoluble. Bacon, who contributed essen- 
tially to a restoration of science and threw so much light on 
various branches of knowledge by his De Augmentis Scien- 
tiarum, treats of political science, especially in the third chapter 
of the eighth book. (Comp, Hallam, Hist, of Lit, iii. 192.) But 
treasures are likewise contained in his Historia Regni Henrici 



1 



subject in Hallam, Constitutional History of England, vol. i., note to pages 254 
and 255, and, indeed, the whole of chapter iv. of that volume. 

* Bancroft justly acknowledges this honorable trait in Luther, the opposite 
opinion of most English writers to the contrary. See note 3 to page 274, vol. i. 
of History of the United States, by George Bancroft, 2d ed., Boston, 1837. It 
is very remarkable that so few English authors, even of the best, have elevated 
themselves to a sufficiently high historic eminence, so as to view Luther wholly 
and fully, as one of the architects of history. His unbecoming dispute with Henry 
VIIL has so powerfully directed the attention of the English to the asperities in 
Luther's character, rather than to his greatness, that to this day they have not 
freed themselves of the effect. The occasional coarseness of Luther is not so 
indifferent as many of his admirers seem to believe, for it materially injured the 
cause of the Reformation : yet it is impossible not to prefer the violence of Luther's 
words to the sharpness of Calvin's doctrines respecting heretics. 



BACON, GROTIUS. 305 

VII., Sermones fideles de Sapientia Veterurn, Dialogus de 
Bello Sacro, and In felicem memoriam Elizabethse, Angliae 
reginas. The people now gain greater and greater promi- 
nence. He says, in the above chapter, ** All who have written 
on laws have either treated their subject as philosophers or 
jurists. But the philosophers propose many fine-sounding 
but unpractical (ab usu remota) things. The lawyers, on the 
other hand, are so entirely possessed by the laws of their 
country, or the Roman or the canon law, that they do not 
use candid judgment, but argue as if in fetters. Indeed, this 
knowledge is properly a matter of statesmen, who know best 
the wants of human society, the welfare of the people, natural 
equity, the customs of nations and the various constitutions, 
and who, therefore, are able to decide concerning the laws 
according to the principles and precepts both of natural equity 
and political wisdom." ^ Remembering that a lawyer and 
philosopher wrote this very passage, we shall all agree with 
it, if not hastily misconstrued. 

Hugo Grotius became about the same time the founder of 
international law, especially by his work De Jure Belli ac 
Pacis.'^ In the mean time had begun in England the strug- 



' " Qui de legibus scripserunt, omnes, vel tanquam philosophi, vel tanquam 
jurisconsulti, argumentum illud tractaverunt: Atque philosophi proponunt pul- 
chra, sed ab usu remota. Jurisconsulti, autem, suae quisque patriae legum, vel 
etiam Romanarum, aut Pontificiarum, placitis obnoxii et addicti, judicio sincero 
non utuntur, sed tanquam e vinculis sermocinantur. Certe cognitio ista ad viros 
civil es proprie spectat, qui optime norunt quid ferat societas humana, quid salus 
populi, quid aequitas naturalis, quid gentium mores, quid rerum publicarum 
formse diversae ; ideoque possint de legibus, ex principiis et prseceptis, tam aequi- 
tatis naturalis, quam politices, decernere." 

This " e vinculis sermocinari" is an uncommonly fine and true expression. 
Every professional man, whatever his profession be, ought to remember it. The 
previous parts of this work, however, will have sufficiently shown how despicable 
the author holds all endeavors to persuade the people that wisdom in politics comes 
intuitively, without industry, without earnest application, and is, as it were, a 
species of knowledge belonging particularly to ignorance. 

» * This great writer, and, what is more, great citizen and great man, has 
been depreciated by minds infinitely below him in grasp, power, learning, acu- 
men, and philosophic architecture (for instance Paley, preface to his Moral and 
Political Philosophy). This is not the place to show how decidedly that great 



306 THE STATE, 

gle between prerogative and the authority of law. Thei 
appeared those great men, Selden, Eliot, Pym, Hampden 
who fought a good fight for all civilized mankind. Respect- 
ing this whole period I recommend especially Brodie, Hal- 
lam, and Mackintosh on the Revolution of 1688, as well as 
Guizot's History of the English Revolution from Charles L 
to James 11. An eminent writer who distinguished himself 
by the liberal views he took of several important political 
subjects so much disrelished at his time, was Hooker, in his 
Ecclesiastical Polity, especially in the eighth book. The 
views of this worthy author on the origin of government are 
so far correct as he derives it originally from consent, but he 
deduces from this consent the contract, which, of course, mis- 
led him, as so many others, to erroneous conclusions. This 
eighth book is read by fewer still, than the first books of 
the Ecclesiastical Polity, yet is even now fully worthy of 
a perusal. 

Hobbes has been mentioned already. Puffendorf, who does 
not follow Hobbes's idea of men's warring against one 
another in their supposed natural state, makes the innate de- 
sire of man for society the foundation of the family, from 
which, by three different contracts, the state is formed. Leib- 
nitz declared himself against natural law as then taught ; he 



mind affected all successive periods to our own times, and how millions and 
millions have enjoyed the civilizing fruits of his work even in the fearful periods 
of war, unconscious to them. It would form a peculiarly fine subject for an 
essay ; but I cannot conclude this note without mentioning, likewise, that so 
prominent a writer as Sir James Mackintosh has paid him a befitting tribute in his 
Discourse on the Study of the Law of Nature and Nations. I wish I had room 
enough to copy the whole passage. I have not, but I beg to quote at least a few 
lines of it. Grotius is blamed for having quoted poets, etc. Mackintosh says, 
" But where are those feelings and that judgment recorded and observed ? In 
those very writings which Grotius is gravely blamed for having quoted. The 
usages and laws of nations, the events of history, the opinions of philosophers, 
the sentiments of orators and poets, as well as the observation of common life, 
are, in truth, the materials out of which the science of morality is formed ; and 
those who neglect them are justly chargeable with a vain attempt to philosophize 
without regard to fact and experience, the sole foundations of all true phi- 
losophy." 



MONTESQUIEU. 307 

considered Hobbes's and Puffendorf's theories as but fanciful 
dreams. Of Filmer we have spoken, and we have seen how 
Locke followed Puffendorf in the first important points. Al- 
gernon Sidney and Milton adopted the idea of the contract, 
and founded upon it the sovereignty of the people. Rousseau, 
in his Social Contract, adopts likewise the original contract, 
but the step he made was this, that he declared the sover- 
eignty of the people inalienable, so that the people in a mon- 
archy remain still, in the aggregate, the sovereign. Soon 
after the declaration of independence of the United States, 
another important era in political history ensued. The sov 
ereignty of the people was pronounced, and not long after 
declared by the first French revolution. 

Important in the literature of political law is Montesquieu, 
on account of his works, the Spirit of the Laws, Considera- 
tions on the Increase and Downfall of the Roman State, and 
his Persian Letters. Bodin, Machiavelli, and the English 
authors lent him many ideas, though he has not mentioned 
them. His works, especially the first, are replete with shrewd 
and not unfrequently profound remarks ; but sometimes his 
brilliancy blinds, and the actual truth is not seen. He has 
given currency to certain views, and even sayings, which are 
not altogether well founded.^ He adheres to the division of 
the three powers, which Aristotle had adopted. Hume's in- 
fluence upon politics was not unimportant. The Physiocrats, 
in France, founded by Quesnay, physician to Louis XV., and 
among whom we must count so many distinguished French 
men, especially Turgot and Malherbes, the well-meaning and 
pure-hearted first ministers of Louis XVI., acquired no in- 
considerable importance in politics, as they were led by their 



* Certain commonplaces fasten for a time upon mankind, sometimes because 
true, sometimes because half-true, at others because they have a captivating 
sound, are tersely expressed, and borrow the graces of alliteration or pungency 
of antithesis, and yet are not true after all. Montesquieu has said, " no monarch, 
no nobility ; no nobility, no monarch." Yet there was nobility, and a very 
noble nobility, in Venice, without a monarch ; there was nobility in the repub- 
lican Netherlands ; while, on the other hand, Norway has a monarchy without 
nobility. 



308 



THE STATE. 



political economy to insist upon the abolition of the exemp- 
tion of some classes from taxation, on free trade, and on abo- 
lition of bondage and of feudal relations. Mably, already 
mentioned, wrote a Droit public de I'Europe, Observations 
sur I'Histoire de France, and several other works, which gave 
him considerable reputation. Adam Smith, Blackstone, De- 
lolme, Hallam, Bentham, have all contributed to awaken or 
settle important political ideas. Filangieri, an Italian, wrote 
a Science of Legislation. He says, monarchs and people 
are natural enemies, and nobility is essential to reconcile 
both. Much respecting public law is to be learned from the 
works of Paul Sarpi, especially his account of the differences 
between Pope Paul V. and the republic of Venice. (Storia 
particolare delle cose passate tra il sommo Pontefice Paolo 
V e la Serenis. Rep. di Venezia, negli anni 1605-7.) ^^ 
allowed to venture the opinion, I would say that, if Italy ever 
be regenerated, it would seem that Sarpi's and Vico's works 
will be found to have contributed much to so great, so noble, 
and so desirable an end. 

In America, no work treating solely and systematically 
either of natural law or the existing public law has as yet 
appeared ; but I would mention as works treating of subjects 
belonging to these departments, or intimately connected with 
them, The Federalist, the writings of Ames, Hamilton, and 
Jefferson, Tucker's Blackstone, Kent's Commentaries, Story's 
Gommentaries on the Constitution of the United States, and 
Wheaton on International Law. (See Political and Legal 
Hermeneutics.) The Journal of Congress before the adoption 
of the constitution of the United States, and the Debates in the 
several state conventions on the adoption of the Federal Con- 
stitution, 4 vols., published by congress, 1836, are works of 
much importance. The work of President Madison, on the 
debates of the first congress, now publishing by congress, will, 
of course, contain many points of high interest relating to our 
subject. 

The great epochs which have had the most decided influ- 
ence on public law are the struggle of the Netherlands against 



PROGRESS OF PUBLIC L 1 W. 



309 



the crown of Spain, the two English revolutions (many im- 
portant principles of the second of which were never more 
clearly exhibited than when the prince of Wales, afterwards 
George IV., insisted upon having the regency, at the first 
alienation of mind of his father; on which occasion, what is 
not a little interesting, the more liberal principles were main- 
tained by the tories, because they had to show that parliament 
represented the people and had a voice in the settlement of 
the regency) ; the American revolution or war of independ- 
ence, the first French revolution, and the epoch of that theory 
of legitimacy which was peculiar to the writers under Napo- 
leon. During the time of the restoration of the elder Bour- 
bons, men like De Bonald and De Maistre brought forth 
their strange mixtures of mysticism, Catholicism, and abso- 
lutism. The rights of the people are favors of the monarchs, 
says Count de Maistre. Since the French revolution of 1830, 
the theory upon which the government is acknowledged to 
be built has materially changed in that country. French 
literature has teemed with political works, but I am not able 
to give a survey of them so shortly after their appearance. 
Of the later or recent Germans I will mention only Wolf, 
Kant, Fichte, Hegel, Politz, Raumer.' 



* A general view of the progress of public law is given with spirit in L. Holt 
man's Inquiries into the most important Affairs of Man as Citizen and Cos- 
mopolite (German), Deuxponts, 1830, 2 vols. — a work, however, from which 
I differ in more than one point. 



CHAPTER X. 

Vanous Standards of great Political Periods. — The Government must depend 
upon given Circumstances and Materials. — Which is the best Government ? — 
Errors as to an Ideal Government. — Governments cannot be made in the Closet, 
oi decreed. — Characteristics of a good Government. — Civil Liberty. — What it 
IS. — Errors respecting it. — Majority and Minority. — The Majority are not the 
People. — The Athenians checked their own Power. — Great and true Value 
of Representative Government. — Whoever has the Power, One, Manv, or the 
Majority, may abuse it, and must be checked. 

C. Since government is that institution, or organism, by 
which the state endeavors to obtain and secure the objects of 
the state, the excellence of government naturally depends upon 
what these objects are, and upon the people for whom it exists 
and through whom it operates. People, in this sense, does not 
only mean the respective individuals, separate and for them- 
selves, but in the various relations in which, according to 
place and time, they must move. Generally speaking, the ob- 
ject of the state is the aiding society in obtaining the highest 
degree of civilization, or the greatest possible development of 
man, both by removing obstacles, or assisting directly, in all 
cases in which the member of society ought not, cannot, or 
will not act individually and upon his own responsibility. But 
Rome was not built in one day; civilization resembles neither 
a mushroom nor a hot-house plant, but it is like i garden, 
to be cultivated with wisdom, that is, patiently, perseveringly, 
and judiciously, keeping steadily in view the main object for 
which the garden may have been laid out, with constant refer- 
ence to what plants may best answer our ends, considering 
the given soil and climate. Mankind was not developed in 
one day, nor is there one absolute prize in the lists of his- 
tory to be run for; the moral growth of mankind is gradual, 
constant, and various, each time and each place affording new 
conditions and giving new problems. 
310 



STANDARD OF GREAT PERIODS. 311 

Each great period in history, that is, each period in which 
the activity of man is directed with peculiar intensity to- 
wards the obtaining of some great end, the realization of some 
great idea, carries within it its own standard. We become, 
therefore, in the same degree unjust, and obtain a narrow and 
distorted view of truth, as we apply the standard of one con- 
spicuous period, a period which opens the gates of a new era, 
to another. The legislation of Moses, whose object was to 
lead bondsmen into liberty, cannot be correctly understood in 
judging it by the standard of the Spartan constitution. The 
laws digested and amended by Lycurgus eight hundred 
years before Christ, and for a small state, do not give us the 
test to try the excellence or badness of the reign of Charle- 
magne, eight hundred years after Christ, over a variety of 
discordant and unruly tribes, whose first essential want was 
pacification. England under Elizabeth, with a bull of Pius 
V. hanging over her, and preceded by monarchs so violent as 
Henry VIII. and Mary, had to strive for different objects than 
under the administration of an Earl Grey. 

CI. Does this consideration lead to mere expediency, and 
is there no stable principle to be ascertained in politics ? By 
no means. The whole preceding part of this work must show 
the contrary. We can and must ascertain those principles 
which, from the nature of men and by ample experience, 
show themselves to be essential to the obtaining of the high- 
est ends; for instance, security of life, limb, and property. 
Yet these, and especially the last, are at times sacrificed to 
higher objects, and always subjected to the most various 
modifications. We must inquire, therefore, whether that 
great object which is exhibited as forming the problem of 
the period is a good one or not ; after that, it is for wisdom 
to judge how it is best to be obtained by the given means; 
for others than the given ones are not at our disposal. 
"Neither are laws," says Selden, "thus to be compared" 
(meaning by an absolute standard). " Those which best fit 
the state wherein they are, clearly deserve the name of the 



312 THE STATE. 

best laws." (Note to Fortescue, De Laud. Leg. Angl, chap, 
xviii., note g, edit, of 1741.) This is very different from Pope's 
verses, — 

" For forms of government let fools contest ; 
That which is best administered is best," — 

a saying which, on account of its boldness and convenience, 
both for the ignorant and indolent as well as for those who 
find high-handed measures more suitable to their interest than 
the restraints of the law, has proved as popular as it is radi- 
cally wrong. For a bad law cannot be administered well : no 
Alfred could administer well the former Irish Brehon or the 
ancient French law, according to which the third estate was 
made and existed only to support the two others, which 
nevertheless held nearly all the land.^ In fact, this fallacious 
dictum seeks all good government in the personality of the 
governors, and is nothing less than the Asiatic principle; 
while the very object of good fundamental laws and institu- 
tions is to force, as far as possible, the various personal pecu- 
liarities which are purely adventitious, that is, uncontrollable 
by us as to their origin, into co-operation in obtaining what 
has been recognized as an essential end and object. 

CII. The objects of the state may be divided into two 
classes: stable ones and those which change. The stable 
objects are those which must ever be considered as the indis- 
pensable requisites of all civilization and all the higher ends, 
that is, as has been mentioned several times, safety of person 
and property, uninterrupted administration of justice. No 
monarch has yet existed, over however uncivilized a horde 
he may have ruled, who has not considered it a high claim 
to the gratitude of his people that he has dealt out even- 
handed justice, if he could claim it at all. If we see such a 
state of things as that which is designated, by what ought to 



^ At the diet of Tours, in 1433, the clergy and nobility insisted that the third 
estate should pay the expenses of all three estates, incurred by travelling to and 
living at the diet, because made to support the two other estates. [?] 



BEST GOVERNMENT. 313 

be called historical irony, as the jus manuarium, but which 
more broadly and correctly bears in German the name of fist- 
law (Faustrecht), we must absolutely pronounce it a bad gov- 
ernment, if government we can call it at all ; because it fails 
to secure one of the unchangeable objects of all government, 
just as that architecture which effects the building of no 
shelter at all would be a bad one, whatever the materials or 
peculiar object in view might be. The changing objects of 
the state vary according to the peculiar genius or wants of 
the people or society, the soil, the degree of civilization, the 
condition of their neighbors, and whatever else may power- 
fully influence the state of a certain society. Government, 
therefore, which has to obtain these ends with these materials, 
must vary accordingly. If the materials, I repeat, are Jews, 
strongly affected by the views of the Egyptians, and in a state 
of barbarity, and the object is to lead them through a desert, 
or to conquer a country where they may^ become agricul- 
turists, or to preserve monotheism amidst surrounding poly- 
theism, the contrivance, called government, to obtain these 
objects, must be very different from what it has to be with .a 
society or state, whose chief object is to ward off the inroad 
of a conquering and devastating tribe, on a small island, as 
that of the knights of St. John on the island of Rhodes was, 
or with a society possessing, by way of inheritance, the insti- 
tutions of England, and one of whose objects is to people, 
cultivate, and spread civilization over an extensive part of a 
vast and fertile continent, as is the case with the people of the 
United States. If the object is to reform and reorganize the 
debased and nerveless population of a large country in a burn- 
ing climate, as that of Egypt at present, the government must 
essentially differ from that of an industrious people who, how- 
ever, must unitedly struggle against the inroads of the sea if 
they mean to do it effectually, such as the Dutch. If, in the 
course of progressive civilization, one of the most inspiring 
and impelling elements of society is the beautiful, as was the 
case with Greece, the government must differ from that of a 
people who must defend themselves daily against the attacks 



314 THE STATE. 

of the Arabians or Moors, as the Spaniards were obh'ged 
to do, or of a people who Hve where, with all possible indi- 
vidual exertion, it is difficult to maintain life, as is the case in 
Iceland. 

If one of the fundamental objects of all government is t<> 
deal out even-handed justice, the organization of the judiciary 
department must be very different among a people where wit- 
nesses can be habitually bought, or where part of the popula- 
tion live in a semi-savage state, as is the case with the lazza 
roni in Naples,' from what it may be or ought to be among 
a people who descend from a nation that have been ac- 
customed for centuries to a high respect of justice and the 
** majesty of the law," as is the case with the Americans, 
descending, as they do, from the English. The government 
of a narrow and extended country must differ from that of a 
compact and well-rounded one ; that of a people who gener- 
ally feel deeply interested in education and industry, from that 
which has to be roused from the inertness and indifference of 
semi-barbarism, as the Russians under Peter the Great; that 
of a country in which different races live, differing in color, 
disposition, and degree of civilization, cannot be the same 
with that of another peopled by one race, the individuals of 
which stand comparatively on a level of civilization, desires, 
habits, and wants. One of the most important of the given 
circumstances which determine the choice of means in gov- 
erning must always consist of the means of government and 
laws made use of by the preceding generations. 

cm. All discussions, therefore, on the excellence of gov- 
ernments merely on abstract principles and without reference 



* The French, having conquered, among other countries, the south of Italy, 
introduced the trial by jury, but they soon were obliged to abolish it again, on 
account of the venality of the people, as well as their general unfitness. One of 
the wise measures of the government of Joseph Bonaparte in Naples was the 
attempt at domesticating the lazzaroni. They were employed in various ways, 
and the wages were partly paid in mattresses or other house-utensils, in order, 
before all, to accustom them to a civilized domestic life, and to break them of 
♦he habit of sleeping in the open air, in gateways, etc. 



BEST GOVERNMENT. 315 

tc the given circumstances, are futile. The science of govern- 
ment is no more an abstract one than architecture. The 
architect, without knowledge of pure mechanics and mathe- 
matics in general, will make but a poor bungler, yet it is of 
primary importance to him, before he can either draw the 
plan of a building or take any specific measure, to know what 
materials he has at his disposal, whether wood, bricks, or 
marble, the climate which will operate on them, the ground 
on which he has to build, and the object for which the build- 
ing is intended. So has the statesman to acquaint himself 
thoroughly with ethics, natural law, and philosophy in gen- 
eral, yet he must not forget his materials when he comes to 
the practical question, nor the object of his society. 

The political writers who have tried to settle the question 
of government without reference to the material, the age, and 
the wants of the people, have fallen into great errors. Some 
have defended monarchy as the ideal of government ; others 
have thought the principle that every male adult, without ex- 
ception, shall have an equal right to vote, the only just and 
philosophical ground on which a true government can be 
founded. On its own ground alone, however, in the abstract 
I mean, the principle of universal suffrage, by which men are 
valued solely by their number, is no more philosophical than 
valuing them according to any other principle, that of prop- 
erty, size, or weight. It might be maintained that the large 
man consumes more than the small, consequently he con- 
tributes more to the expense of government, therefore he is 
entitled to a larger share in government. There are condi- 
tions of society in which property forms a sound basis of 
representation, and the soundest that they allow of; but is 
this so on its own abstract ground ? Does not the labor of 
an industrious man, or his readiness to defend the state by 
exposing his life, give an equally well-founded title to the 
right of being represented, and an active share in this repre- 
sentation? Whoever has adopted one principle in the ab- 
stract as the only admissible basis of government has been 
forced into the strangest incongruities. 



3i6 THE STATE. 

CIV. That there are immutable political principles in gov- 
ernments according to which we can at once pronounce 
some to be bad, or, at the utmost, to be called for only by 
way of rapid transition, is evident. That, on the other hand, 
there are certain important principles of good government 
which will steadily show themselves clearer with the advance 
of civilization, is equally evident ; and, finally, that experience 
and mature reflection upon it entitle us to declare certain 
forms and features as vastly eligible for a certain period and 
a certain degree of national development, I hold to be equally 
true. Such, for instance, I consider to be, for the civilized 
nations of our times, the exalted principle of representative 
government, or that of two chambers. If experience shows 
us that the adoption of certain principles always leads the 
people towards certain desirable ends, if they have once ar- 
rived at a certain point of political civilization, we are justly 
entitled to declare it with regard to a people in such a state 
of civilization, and inhabiting such or such an extent of 
country, a salutary one. But who would like to be tried by 
a jury of Bushmen, or insist upon the introduction of popular 
representation with two chambers in Turkestan, or annual 
meetings of parliament in China? 

Nor do I maintain that it is impossible to settle certam 
general principles in politics. One of these, for instance, is, I 
take it to be, that any class of men who have the power to 
make themselves politically felt and are conscious of it, have 
thereby a right to influence government proportionally. I 
do not say that those who have not the power shall on no 
condition be entitled to this right. This would be a wrong 
and very dangerous conclusion. The cities had a right to 
rise into political influence in the middle ages ; the peasants 
had a right to demand liberty with its consequences. It is 
the very province of the science of politics proper to discuss 
and trace out these principles ; and I shall find occasion to 
touch upon a few in the sequel of this volume, as I have 
done already in the previous part, when speaking of power. 

Governments are not made in the closet; you may pro- 



GOOD GOVERNMENTS. 317 

claim a republic, you may write a constitution on parchment, 
but does it work ? is it a living thing ? Was France ever a 
republic, in despite of her many constitutions proclaiming her 
to be such ? She remained a concentrated government, and 
is now only gradually changing her character. Lord Erskine 
says of the first English revolution, " Monarchy was only sus- 
pended, not abolished." Of the French it might be said that 
absolute monarchy changed the name ; and of the United 
States we may well say, republicanism was only veiled as 
long as they were colonies. I do not indeed mean to say that 
no government can change, but it cannot leap over into some- 
thing else, nor ever become anything but what is conditioned 
by the existing materials. 

CV. Which is the best government? That government 
which fulfils best its purpose, by which, however, is not meant 
a momentarily so-called flourishing state only. For such a 
state of things may, at times, poison the very life-blood of a 
state, and undermine instead of leading to a higher degree of 
liberty, the main object of all governments, because greater 
liberty is but greater protection — protection of free individual 
action. 

To speak of civilized nations, that government ought to be 
called good which amply protects and in which every man 
can obtain justice; which for its existence does not require a 
class by whose privileges others are injured, be this a wrongly 
privileged aristocracy, or democracy, or party. That govern- 
ment is the best under which we find the greatest number of 
laws and institutions, essential to the state, founded, devel- 
oped, or secured, with which the nation works heart and hand 
for just and great ends;^ which forms one living organism 
with the people, and with which in times of danger they 
join with true devotion, considering their sacrifices to it as 



* Popularity is far from constituting the sole index of good government, not 
even the universal readiness of the people to share the dangers of war. The 
wars of the Mongols were essentially national and not cabinet wars ; but was the 
Mongol government a good one ? 



3i8 THE STATE. 

sacrifices to the common weal only ; that government which 
has in itself the peculiar expansiveness as well as the organi- 
zation which not only allows, but necessarily leads to, farther 
and farther political development, and goes on raising the 
individual as a political being. When we see the flourishing 
state of a nation essentially connected with institutions, and 
when we find the fundamental institutions with an expansive 
character, not of a cramping obsoleteness, then we may have 
a right to suppose that the government is good.^ Seek not 
protection or liberty in mere forms. No political form that can 
be imagined has not at times been oppressive and ruinous. 
Life, true and high action, is the thing we must look for ; 
mere form kills. 

CVI. That government is the best which secures most 
effectually all the stable objects of the state, and aids most 
wisely in obtaining all the others ; which procures in the 
calmest and yet most efficient way all things that must be 
obtained for society, and does not oblige the people fre- 
quently to resort to sudden and violent actions in order to 
obtain what needs must be obtained by united a<:tion, and 
which government, nevertheless, fails to procure ; that gov- 
ernment which interferes least with my individuality and yet 
affords to society the best opportunity for the highest indus- 
trial and mental action ; in fine, that government which con- 



* There are certain meteoric periods in the history of some nations, which pass 
quickly, and leave no life, as the kindling ray of the sun does, though he may 
vanish for a time from the heavens. There are few more glorious epochs in the 
annals of any people than that of the Portuguese which begins with the striving, 
gifted, enlightened, and enlightening pi ince Henry the Navigator, and winds up 
with Louis Camoens, that noble martyr of genius, and includes the invention of 
the sextant, vast discoveries, heroic deeds, enlargement of knowledge, and the 
names of Diaz, Gama, Cabral, Andrada, and Albuquerque. Yet the period was 
not only, historically speaking, brief, but dark night succeeded, and the Portu- 
guese nation has ever since presented a painful instance of a misruled people. 
They had no sound institutions. Neither national riches, nor glorious names, 
nor heroic deeds, nor brilliant literature, nor absence of commotion alone, are 
capable of saving a nation, or furnish us, of themselves and without reference to 
something else, with a safe exponent of good government. 



BAD GOVERNMENTS. 319 

tinually remembers that every individual has an undeniable 
right to the greatest possible individual activity, and, there- 
fore, protects against all interference with him, and secures to 
him all that which is necessary to him as a social being. 
Wherever we see great personal security and high social 
action, wherever individual and social rights and claims are 
best secured and promoted, there is the best government. 
Where personal and social activity is paralyzed, where the 
mental life of society is deadened, where the individual re- 
ceives no equivalent for his sacrifices, where one part of so- 
ciety is sacrificed to another, that is, where no equivalent is 
received ; where a few control and arrogate government to 
themselves, like the property which belongs to them ; where, 
above all, the stable objects of all governments are but par- 
tially secured, or, if e'ntirely, only for a few, and where no 
industrial, moral, and mental expansion of society exists ; 
but, on the contrary, where measures of government have a 
benumbing effect, where protection depends chiefly upon 
the personality of those in authority, and not upon well- 
grounded institutions and laws, which are conceived not with 
regard to their operation and salutary effect but on account 
of extraneous and unessential considerations ; where we see 
numerous laws issued, but without action and soon forgotten, 
nominal institutions without roots in the history of the nation, 
— there is a bad government. 

CVII. Here we have to guard ourselves against two errors. 
The high intellectual or social activity of a part of society 
may be, and often has been, obtained by a sacrifice of the 
most essential interests of by far the greater majority of the 
people. I speak of those brilliant governments which blind the 
superficial observer, such as that of Louis XIV. They have 
an equally dangerous effect upon the hasty observer of after- 
times, who seizes only on what is striking and does not suspect 
the sacrifices which were necessary to produce it. A palace 
of a Louis XIV. is remembered long after the squalid popula- 
tion which had to pay taxes towards it has been forgotten. 



320 THE STATE. 

CVIII. Yet we must be careful not to take the physical 
well-being, either by way of physical comfort or personal and 
physical security — two most important objects of government, 
indeed, because they are the foundation for higher objects — 
as its sole end or only index of excellence. It was a true 
saying of Plato's, "Not to live, but to live nobly is the object." 
Personal security against bodily harm, for instance, may 
be obtained together with personal liberty, and forms part 
of it, in which case it is excellent ; or it may be obtained 
at the price of personal liberty. An extensive preventive 
police may, by fettering all free individual action, prevent 
many offences indeed, but mere physical security is not the 
object of government. Society stands in need of it, because 
without it society cannot obtain its highest object — civiliza- 
tion, which includes free, individual activity. There is peace 
indeed in a prison. If you put a man in irons he cannot 
do harm, it is true, but neither can he do good. The so- 
called happiness principle, if happiness be rightly understood, 
is correct, but a most mischievous one if we limit it to 
physical well-being only, as, certainly, it is taken by many of 
its advocates. Is this happiness indeed the last term to be 
striven for ? If so, why does every one feel in the course of 
his life called upon to give it up to higher objects ? Is this 
happiness always the means through which we reach the 
highest objects of man? or is not trouble, sacrifice, and even 
woe, that means in many cases ? Has a nation not to sacri- 
fice happiness to liberty? Is it merely the avoiding of higher 
taxes which shall prompt a people to bold, high, national 
actions ? 

CIX. Had not this erroneous position been frequently 
taken, it would not so often have been asserted that the best 
government is an absolute monarchy with a truly just and 
wise king. This is a most radical error. An absolute gov- 
ernment, which forces to act, and does not animate and fruc- 
tify the principle of self-action, undermines the state by its 
very character, and exposes to the greatest danger, both by 



WISE ABSOLUTE MONARCHS. 



321 



the death of the just and wise ruler, who cannot insure the 
same qualities in his successor, and by blinding the people, 
who, content with their physical welfare and perhaps the bril- 
liant energy of the government, are ready to abandon all law 
and all institutions, placing implicit confidence in their rulers, 
until recovery is too late. " Where the security is no more 
than personal, there may be a good monarch, but can be no 
good commonwealth." (Harrington's Political Aphorisms.) 

ex. So unfounded is the error, that the very opposite may 
be supported with far greater truth ; for history shows that it 
is the wise government, tending towards absolutism, which is 
most dangerous to the people, not the galling, openly or 
cruelly tyrannical one. This rouses, the other lulls to sleep. 
That a high-handed absolutism may be the best government 
for the society at large, as a stage of transition only, under 
peculiar circumstances, cannot be denied. When the ruler is 
far in advance of a barbarous or semi-barbarous nation, as 
was the case with Peter the Great, when discordant and 
heterogeneous elements have to be united and forced into a 
uniform action, as was the case after the migration of nations, 
when a society infested with swarming banditti, in open war 
with all authority, has to be rescued, as central Italy under 
Pope Gregory XIII., when civil war has torn the country and 
a restless party foments conspiracies, as under Cromwell, 
bold, high-handed measures are often indispensable and the 
only salutary ones ; but they form the exceptions, and cannot 
lead to the rule, just mentioned, that the best government 
would be absolutism in the hands of a good ruler. If a ruler, 
even in cases like the above, neglects to awaken the principle 
of civil life, if, while with a high hand he pursues the general 
welfare, he disregards private rights, he still omits as much 
as he performs. For, instead of inspiring society with the 
breath of life, he deprives it of it, and, consequently, renders 
future generations unable to obtain those objects for which 
all absolutism, even the best, can be but a temporary means. 
If, then, we find it asserted that that government is the best 



322 THE STATE. 

which best provides for the substantial interests of the people, 
we shall know how far to yield assent. Everything depends 
upon what we understand by substantial interests. If they 
mean what has been shown to be the true object of society, it 
is most true, for all forms are but means or necessary effects 
of that which is essential. If by substantial interest nothing 
be meant but personal safety, absence of danger, and plenty, 
even at the price of individuality, of mental free action, it is 
not true. Rather all the danger of error, than that torpid 
state where there is neither truth nor error, but mere polit 
ical stagnation. 

" Generally speaking," says Schiller, in his Lecture on the 
Legislation of Lycurgus and Solon, " we may lay it down as 
a rule, in judging of political institutions, that they are good 
and praiseworthy only in as far as they further the develop- 
ment of all the faculties with which man has been endowed, 
in as far as they promote the progress of civilization, or at 
least do not impede it. This is equally true of religious as 
of political laws ; both are objectionable if they fetter a faculty 
of the human mind, if they impose upon it, in any sphere, a 
standing still. A law, for instance, by which a nation was 
bound unalterably to retain a system of dogmatics which 
appeared to it at a certain period as the best, would be a 
criminal attempt against humanity, and no intention, how- 
ever plausible, could justify this. It would be directly 
against the highest good, the highest object of society." 

CXI. One of the great errors into which philosophical 
politicians have frequently fallen, in consequence of seeking 
for a government absolutely and abstractedly good, is the 
idea that, the people being themselves the object of all gov- 
ernment, as well as the real source of power, the best govern- 
ment will be there where the people have absolute power. 
Let us investigate this subject with the attention and sincerity 
which its magnitude requires. 

It is asserted that if the people for whom alone the govern- 
ment exists have the sole power, they clearly will not act to 



CIVIL LIBERTY, 323 

their own injury. This is erroneous. First, it would apply 
to such people only as are sufficiently enlightened to know 
what is their true interest. The Caffres, and, indeed, I be- 
lieve all savage tribes, have essentially what are called popu- 
lar governments. Yet they do not rise out of their state of 
barbarity; no one would consider this government preferable 
to one which might be less popular but would force them to 
keep the peace. Secondly, this proposition rests, like so many 
others, on a deception, owing to the personification of an idea, 
which means an aggregate, not an abstract. Who are the 
people ? Is it one individual, or a number of individuals, 
called, for convenience' sake, by one name, or because we 
imagine it as a body of individuals who in regard to many 
and most essential points, but not to all, are impelled by a 
common interest? Are the people an aggregate of a number 
of individuals with one mind, one will, one impulse, or do the 
people consist of a majority and a minority? Giving un- 
bounded power to the people means, then, nothing less than 
giving unbounded power to a majority; for, as a matter of 
course, the majority must possess it, if the people have it at 
all. We are repeatedly told that the people can do what they 
like; but have they the right to deprive the minority of their 
property, as they have done on various occasions, or to en- 
slave them, to kill them, as the majority of Corcyra did, 
during the Peloponnesian war (Thucyd., iii. 70, 85), or the 
French during the first revolution ; for though the executions 
during the reign of terror first took place after sham trials, 
towards its end it was decided that being suspected should 
suffice to mark the victim, which, in plain English, meant 
that being in the minority is a capital crime. Have the ma- 
jority the right to deprive the minority of speech ? in short, to 
deprive them of any essential attribute of man, or to deny 
them any of the main rights of the citizen and chief objects 
of the state ? Have they the right, however frequently it 
may have been done, to arrogate to themselves the name of 
the people, and to treat every one of the minority as if not 
belonging to the people ? 



324 



THE STATE, 



CXII. Our definition of liberty must necessarily depend 
upon the view we take of the state and its objects, so that the 
ancients sought liberty in something different from what ap- 
pears to constitute the essence of modern liberty, a subject to 
which I shall revert on a subsequent page. But whatever 
liberty may be — and it certainly consists as much in the ab- 
sence of restraint and interference with actions which indi 
viduals may practise, as in protection, that is, protection 
against individual violators of my rights, against the elements, 
if they defy individual exertion, and against anything which 
interferes with my being truly that which I ought to be, as 
far as I alone cannot remove it — whatever liberty may be, it 
is of little political value to nations, unless something definite, 
distinct ideas embodied in palpable institutions, or funda- 
mental laws, be meant by it ; — except by way of rousing de- 
generate generations. In this case even a vague notion of 
liberty may be of much service, in order to throw the first 
spark into torpid hearts. 

As long as liberty remains a generality, its love a longing 
and feeling rather than a definite conception, it is a poetic 
principle, capable of prompting to generous actions, but of 
little use as to the proper conception of what these actions 
ought to be. It is in institutions that liberty is embodied ; 
and for what end are these institutions established ? To pro- 
mote and to protect. To protect whom ? Him that wants 
protection. Who wants protection? Most of all, he who 
does not agree with those that have the power. One of the 
truest signs and safest exponents of substantial liberty, there- 
fore, is the unwavering protection which t^\e individual, op- 
posed to power, the minority, enjoys — in a word, it is the 
absence of absolute power. 

A late writer strangely asserted that liberty exists in the 
degree that representation and constituency agree — a puerile 
assertion, which it would be superfluous to mention, had not 
the same writer issued, of late, various works on subjects con- 
nected with politics, claiming, probably, the same attention of 
the public for them which his previous productions of an en- 



CIVIL LIBERTY, 325 

tirely different kind have enjoyed. If that assertion be true, 
it either exists not at all where there is no representation, 
and the body of the people act directly, or it exists always in 
this case. But though an overwhelming majority sentenced 
Socrates for blasphemy, for him there was in that case no 
liberty at Athens. Suppose, moreover, the will of the con- 
stituents is wicked, tyrannical, does liberty still exist because 
their representatives are perfectly willing to act up to their 
desire ? A strange sort of liberty, which solely depends upon 
something external and relative — the agreement of two par- 
ties; and not upon something essential and positive. This 
untenable view is another misconception arising out of the 
primary error of a natural state of man, and a natural liberty, 
in which man is believed to be absolutely without any re- 
straint, except his own conscience and understanding, which, 
however, it would appear, must yet be very weak. Civil lib- 
erty, therefore, is judged by'a negative standard, that is, it is 
believed the less you are required to give up of that original 
and perfect natural liberty, the greater the amount of civil 
liberty. The idea is wrong, radically wrong. Liberty, like 
everything else of a political character, necessary and natural 
to man and noble to be striven for, arises out of the develop- 
ment of society. Man, in that supposed state of natural lib- 
erty which is nothing but the roving state, is, on the contrary, 
in a state of great submission : he is the slave and servant of 
the elements ; matter masters his mind ; he is exposed to the 
wrongs of every enemy from without, and dependent upon 
his own unregulated mind. This is not liberty ; it is plain 
barbarism. Liberty is materially of a civic character. Doubt- 
less I cannot live a day without feeling the restraint of law, 
that is, the effect of my living with others. Now, inquire 
whether this restraint is the giving up of something you may 
be supposed to have once possessed entire, or whether the 
whole is of social origin. You are not allowed to speak 
against the reputation of a neighbor. This is a restraint ; had 
man ever the liberty to speak against his neighbor what he 
liked ? In that state of nature he had no neighbors. He was, 



326 THE STATE, 

questionless, allowed, if ever he lived in that state, to mutter 
to himself what he chose ; so you may now say against your 
neighbor what you like, provided no ear but your own 
hear it. 

Liberty, I would say, exists in the degree in which my 
action and activity in all just and right things is untrammelled, 
in the protection of my individual rights, and in the same 
degree as I am not sacrificed to others. 

But, it may be objected, can the majority be supposed to 
desire anything wrong? 

CXIII. Let us calmly and with truthfulness consider his- 
tory and the nature of man, and we shall find the answer. 
We all acknowledge that man is a frail being, subject to a 
thousand sinister influences ; we all acknowledge that wise 
men are infinitely rarer than unwise ; yet shall the aggregate 
of these individuals constitute a wise, just, dispassionate body. 
Where is reason in this argument ? Is there more reason in 
it than to expect wisdom from the accident of birth, in heredi- 
tary monarchy? The people, the majority, are subject to 
sudden impulses, to passion, fear, panic,^ revenge, love of 
power, pride, error, fanaticism, as individuals are, for they are 
individuals; and they are as much obliged to check their 
united power as that of small bodies and individuals must be 
checked. Socrates, when in anger, was in the habit of count- 
ing quietly a large number, to allow time to his excitement 
to pass over. He was a wise man indeed. A law of Al- 
phonso IL of Spain decrees that a sentence of death or muti- 
lation shall not be executed until after twenty days, so that, 
should it have been pronounced in wrath, there might be 
time for reconsideration. It was a wise law, at a period when 



» When the Asiatic cholera raged in Hungary, the peasants, the vast majority 
of the population, killed the nobility with excruciating torments, because the 
deluded people believed that the wells had been poisoned. Something similar 
took place in Paris, and quite lately several Englishmen were murdered by the 
populace of Rome, because suspected of wickedly charming some iaoffensive 
children. 



POPULAR EXCITEMENT. 327 

the necessary guarantees of caution in the trial itself had not 
yet been discovered. The people at large stand as much in 
need of retarding processes as that Grecian sage or those 
Spanish courts. The Athenians distrusted their own power, 
and a citizen who proposed anything against the established 
and fundamental law was punishable. He remained so, even 
if his proposition had been adopted, for one whole year, and 
the Tzapa\>6ij.wv rpo-9'n could reach him, which, therefore, was 
considered by the Athenians as the great protection of the 
state. Whatever we may think of the means, we cannot but 
agree in respecting the principle.^ In that same immortal 
city, to which mankind owe so much more than to any other, 
no law affecting a single citizen could be passed, if six thou- 
sand votes could not be collected in favor of the same.^ And 
we must never forget one fact, of great importance respecting 
popular excitement, whether it consist in panic or anything 
else, that if it be true, on the one hand, that large numbers 
cannot in their nature be so easily influenced, in many cases, 
as individuals, it is likewise true, on the other hand, that all 
men are apt to mistake repetition for confirmation. If I leave 
my house, and twenty persons speak to me successively of 
the same fact or impression, it has a strong tendency to make 
me believe what they say ; yet all these twenty persons may 
have derived their first impression directly or indirectly from 
the same original source, which may or may not have been 
correct. Hence the incalculable power of rumors, the sur- 
prising beliefs and many of the actions of great masses, at all 
times of general excitement, which the historian of after- 
times is unable to trace back to any satisfactory source, or of 
which it is difficult for him to conceive even how they were 
possible. The beginning of the first French revolution fur- 
nishes several striking instances. (See the Memoirs, also 
Carlyle, Thiers, etc.) Rumor moves on like an avalanche. 



* Demosth. ag. Timocrates, 748, 9 ; vEsch. ag. Ctesiphon, 367. The orators 
speak continually of the Trapavo/zuv ypa<l)7f, 

" Andocides on the mysteries, p. 42. Comp. Demosthenes ag. Aristocrates, 
p. 649, 4, p. 692, 25, and several other passages. 



328 THE STATE, 

All that Virgil said of the ancient Fama holds likewise of the 
modern : 

" Mobilitate viget, viresque adquirit eundo ; 
Parva motu primo ; mox sese attollit in auras 
Ingrediturque solo et caput inter nubila condit." 

But to this must be added that in our times she flies incom 
parably swifter, because the thousands of newspapers are her 
wings, and she is, in many cases, infinitely more obstinate, be- 
cause the word is no longer evanescent breath, but fastened 
and fixed by types and print. 

CXIV. Here, then, we find the great principle of a repre- 
sentative government, even in a democratic republic. It is 
not because the people are too numerous, and cannot any 
longer assemble in the market, as in the ancient republics, 
that representative governments are advisable, or have be- 
come necessary, merely by way of expediting business, but it 
is on the very same principle as a monarch, who interferes 
himself and does not leave matters to their proper authorities, 
even in absolute monarchies, is considered to act despotically, 
that the people, if they hold the supreme power, must not act 
themselves but through agents. He who has power, abso- 
lute and direct, abuses it; man's frailty is too great; man is 
not made for absolute power. 

Everywhere it is now considered tyrannical — it was even so 
under so absolute a king as Louis XIV. — when a monarch 
sits in judgment himself; and it is tyranny, likewise, if the 
people do not judge through their courts. Frederic the Great, 
who was very anxious to remove a wind-mill close before the 
centre window of his favorite palace at Potsdam, could not 
induce the miller to sell it. The king, irritated, threatened 
the owner to force him to consent. *' There is a supreme 
court in Berlin," answered the miller. The king was silent, 
and the mill stands to this day, an annoyance to the palace, 
but one of the best monuments which an absolute monarch 
ever erected to himself, as an ambassador wrote home from 



REPRESENTATIVE PRINCIPLE. 329 

Potsdam. It was stated of late that the present owner was 
very anxious to sell the mill, but the descendant of Frederic 
considers it too proud a monument of his forefather to allow 
it to be removed, I do not know that there is anything to 
which an American can point with greater pride than the 
decisions of his courts by which even legislative enactments 
have been declared unconstitutional, and which decisions are 
still in force. We shall see that the independence of the ju- 
diciary is one of the most important guarantees of civil liberty. 
England owes her greatness, in a high degree, to her inde- 
pendent judiciary, to the independence of the law. It is, 
therefore, a political error that some states have made the 
judges eligible for a few years only. It is, in fact, the major- 
ity — not even the people, the sovereign, which would be bad 
enough — taking the administration of justice into their own 
hands, on the ground that they shall administer it according 
to the sense of the people. There is tyranny, where the 
holder of power sits in judgment or influences it. 

CXV. If it be true, as already mentioned, that a multitude, 
in many cases, are not so subject to sudden impulses as an 
individual, it is equally true that it is more difficult to dis- 
abuse a multitude than an individual. There are several 
other points which we have yet to consider in comparing 
monarchical and democratic absolutism. It has been fre- 
quently observed, after Lord Coke, that " corporations are 
without souls." Why is it so ? Can the individuals forming 
them be imagined to be peculiarly bad ? If so, it could not 
be a general remark ; for corporations may consist of very 
different persons. The answer is simply this : because re- 
sponsibility does not present itself so distinctly to one person 
in a multitude as to an insulated individual. Many an indi- 
vidual, indeed, will break down a house, nay, commit homi- 
cide, if he join a mob or become the member of a criminal 
association, who would shudder at taking the responsibility 
of these actions individually upon himself^ 



« To what a fearful degree of c.ep ravity men sink, what enormous crimes they 



330 



THE STATE. 



Another remark of high importance is to be made respect- 
ing democratic and monarchical absolutism. What is abso- 
lutism, the Tzaix^aaiMa of Aristotle ? The striking appear- 
ance, the form rather than the essential principle, have in this 
case, as so frequently, misled. Authors and politicians treat 
of absolutism as if there existed none but monarchic abso- 
lutism. It is not so in reality. A late writer, Mr. Dahlmann, 
defines absolute government thus : " When government has 
not only power, but all power, not only superioritas, but 
absolutum imperium, it is absolute government." This seems 
to be a circle ; absolute government is absolutum imperium. 
No doubt it is, because it is the same expressed in two Ian- 
guages. I would say, wherever all power that can be ob- 
tained is undivided, unmodified, and tm-mediatised^ some- 
where, whether apparently in an individual, or a body of men, 
or the whole people, which means in this case of course the 
majority, there is absolutism. The Athenian democracy sank 
into absolutism. I shall recur to this subject. Comparing 
democratic and monarchical absolutism, we shall find that the 
latter must needs rest its power somewhere without the mon- 
arch himself; for, as has been several times observed, the 
monarch has personally no more power than the meanest of 
the crowd. He must be supported by opinion without him ; 
but democratic absolutism is power itself — it is a reality — 
fearfully sweeping power. It is real power, a torrent which 
nothing can stem. If an individual opposes monarchical ab- 
.jolutism, there is something heroic in it in the eyes of the 
people; if a man opposes democratic absolutism, he is at once 
considered a heretic, a traitor to the common weal. On the 
other hand, there is, indeed, a difference in democratic abso- 
lutism, namely, that at its height it necessarily leads to anar- 
chy, and hence to a change ; for anarchy is against the nature 



may be ready to commit as members of a society, under a common pledge, was 
■ately exhibited in the trial of the Glasgow cotton-spinners, in Edinburgh, Jan- 
uary, 1838. A society had been formed for the purpose of keeping up high 
wages, not disdaining atrocities and murder as a means to effect their object if 
a murder was to be committed, the lot decided who should commit it. 



POLITICAL FLATTERY. 33 1 

of man, and nothing remains long which contunds against its 
own nature; while monarchical absolutism may last centuries, 
as in Asia. Democratic absolutism may, if not at its height, 
yet in an obnoxious degree, exist for a long time, in lesser 
communities. 

CXVI. The untenable ground on which absolutism, of 
whatever kind, rests, can be shown also in this way. Ab' 
solute power in the state necessarily demands absolute obe- 
dience, for without obedience to government there is no 
government. What other meaning has authority than that 
in some way or other it can direct our actions ? We cannot 
say, then, "here is absolute power, but the citizen need not 
obey if he choose not to do it." It would be a contradiction 
in itself; it would not be absolutism. Are the minority not 
bound to absolute obedience, though the majority have abso- 
lute power ? These are contradictory terms. But, as I have 
had repeated occasion to observe, and as we shall farther see 
in the chapter on Obedience of the Laws, absolute obedience 
is not only immoral but impossible. Absolutism, therefore, 
in whatever shape, falls to the ground. 

CXVII. Where power lodges, thither flattery flows. The 
prince — I here use this word not only for monarchs, but as 
the Venetians were in the habit of using it of their large body 
of nobles, who jointly had the supreme power, of the power- 
holders in general, whoever they may be — the prince loves 
flattery. Let us always beware of it. Every one loves flattery 
— we too, if we have power. Power, it will be remembered, 
has an inherent tendency to absorb, increase, extend ; and 
interested men will always be found in abundance to help 
along this tendency, because it is pleasing to power to in- 
crease. Every prince, used in the above sense, finds his 
courtier. Republics are not freer from base courtiers than 
monarchs. The power-holder finds always ready instruments ; 
and we ought early to learn how to guard against the flatter- 
ing insinuations of those who live in the wake of power. 



332 



THE STATE. 



Power loves to be flattered, the same flatteries are ever re- 
peated. The Turkish conquerors, the Solymans, Mustaphas, 
Mahmouds, loved to hear their fury compared to the ire of 
God and the lightnings of the heavens ; and we have seen 
already how the revenge of the French people in the first 
revolution was complacently or cunningly compared to vast 
natural phenomena. Demagogues are but courtiers, though 
the court dress of the one may consist in the soiled handker- 
chief of a Marat, that of the other in silk and hair-powder. 
The king of France was told in 1827, "The royal absolute 
power exists by natural right. Every engagement against 
this right is void. Thus the prince is not obliged to keep 
his oath;"^ and in America the people of a large state were 
lately urgently advised to break a solemn engagement, be- 
cause they, the majority, had sovereign power. When Napo- 
leon was at the summit of his power, the archbishop of Paris 
wrote to his bishops in a pastoral letter, " Servants of the 
altars, let us sanctify our words ; let us hasten to surpass 
them by one word, in saying he [Napoleon] is the man of 
the right hand of God;"^ and one of the presidents of the 



» A. R. D6dilon, Coup-d'oeil sur les Constitutions et les Parties en France^ 
Lyons, 1827. 

* Goldsmith, Histoire secrete, page 130. Can the author have invented it ? 
I only knovir it from that work. The bishop of Amiens says in his mandemeni, 
*' The Almighty, having created Napoleon, rested from his labors." Fabre de 
I'Aude, president of the tribunal, said to Napoleon's mother, " The conception 
you have had, in carrying in your bosom the great Napoleon, was certainly no- 
thing else than a divine inspiration." It is well for us fearlessly to see how far 
man is ever ready to err, as soon as opportunity ofters. Shall we wonder that 
the Romans deified their emperors and worshipped their images ? If power had 
such effect, so shortly after one of the bloodiest revolutions in the name of lib- 
erty, after the Christian religion had been professed for centuries, a religion 
which teaches that the mightiest emperor is but a sinful servant in the presence 
of God, should we be surprised that the Roman emperor was considered godlike 
by the subject, whose gods had abandoned him ? (See chapters xii. and xiii. 
of Book II.) 

It is not good, between individuals, to rake up past follies; it is noble not 
only to forgive but truly to forget. What is true of individuals holds likewise of 
nations. Not, therefore, to offend, I wish that some one would publish the most 
remarkable addresses mide to Napoleon in and out of France: I wish it, tliet 



POLITICAL FLATTERY. 



333 



United States (General Jackson) was told in a pamphlet that 
he was the actual representation and embodiment of the spirit 
of the American people, the personification of»American de- 
mocracy, that is, of the American nation. 



we may have them as a mirror of ourselves ; for is it not our own time whicH 
committed these guilty follies ? No man can improve unless he reflect at time» 
seriously on his past life ; so it is with nations, with mankind. 



CHAPTER XI. 

Political Atony one of the greatest Evils. — The Ancient Tyrannies. — Variety ol 
Means to Check the Abuse of Power. — Can Power be controlled ? — Who Con- 
trols the controlling Power? — Constitutions. — Are Written Constitutions of 
any Value ? — Constitutions are Indispensable. — Various Reasons why and 
Circumstances when Written Constitutions are desirable or necessary. — 
Division of Power ; Legislative, Executive, and Judiciary. — Great Danger 
resulting from Confusion of these Branches, in Republics as much as in 
Monarchies. — Importance of the Separation of the Executive from the Legis- 
lature. — Vast Importance of an Independent Judiciary, — What does Inde- 
pendent Judiciary mean? — The farther pv)litical Civilization advances, the 
more independent does the Judiciary become. 

CXVIII. The state requires power; without public power 
government cannot act, it cannot obtain its object, is unable 
to protect, and to enforce obedience to the laws ; yet, on the 
other hand, all power has a tendency to increase. Without 
power, government, the laws themselves become despicable, 
political immorality and along with it all other immorality 
increases like a very cancer of society. This state of things 
may be called, borrowing a term from the healing art, atony, 
the necessary forerunner of a change of government either 
directly or by the intermediate state of anarchy, which I 
distinguish from the former by this, that atony is a state of 
general disregard of law from weakness, want of energy, a 
depression of the vital spirits of society ; while by anarchy I 
would denote rather a chaotic stirring of the elements of 
society, open, forcible, avowed disregard of the laws, and of 
the principles of political society. Atony existed under the 
Merovingians, anarchy frequently in the feudal times. Atony 
exists in some parts of Turkey, anarchy in some parts of 
Spain. 

If, on the other hand, power is permitted to go on increas- 
ing, it leads to despotism, by which is meant that state of the 
334 



THE ANCIENT TYRANNIES. 335 

political society in which power alone decides, because it is 
power. Despotism may consist in the abuse of supreme 
power for purposes entirely at variance with or hostile to the 
objects of the state, in which case we call it, in modern times, 
tyranny. The ancient word tyrannis meant something dif- 
ferent: : it was usurpation of supreme power, not necessarily 
conm cted with cruelty or oppression. Pisistratus was called 
a wis.i tyrant. Or he that has the supreme power may use 
more than has been granted him ; in other words, the legiti- 
mate limits of public power may be transgressed. In the 
latter case, though despotism exist, it may still use the public 
powei' for purposes of general utility. A nation on its guard 
never suffers it ; but too frequently does tyranny creep in as 
popular despotism. (See Hermeneutics.) A process perhaps 
still more remarkable, and yet frequently exhibited in history, 
is that by which despotism steals into power by opposition to 
power. It is a very common mistake of the unwary to con- 
sider opposition to power at once as an indication of love of 
liberty; yet that the contrary can take place has, among 
many instances, sufficiently been proved by the attacks of 
the Jesuits or their adherents, with the ablest pens and the 
sharpest daggers, upon many Protestant governments.^ What- 
ever our opinion of that remarkable society may be, I suppose 
we all agree that it was not civil liberty they strove for. Some 
of the most vehement speeches in favor of popular liberty on 
the floor of the French chamber of deputies are made, at 
present, by the adherents of elder Bourbons. 

CXIX. A variety of expedients to retard the increase and 



* Mariana, de Rege et Regis Institutione. — Balthazar G6rard, the assassin of 
William of Orange surnamed the Silent. 

When the estates of France were assembled for the last time, in 1614, at the 
diet already mentioned, the bishops maintained that " the church is authorized to 
depose kings," and the nobility added, "the abuse of power is a legitimate 
ground for deposition." The third estate alone denounced these principles. 
And what was called abuse of power ? There existed no greater in the eyes of 
the clergy and nobility than interference with their immunity from taxes. It was 
this and the possible leaning to Protestantism which was meant in this case. 



336 THE STATE. 

regulate the use of power have been resorted to, some of 
which shall be considered here. The only way of avoiding 
effectually the evil is to prevent the generation of too much 
power, which, however, is not easy, for the simple reason that 
public power must exist, and if it exists, no matter where, 
it not only tends to increase by itself, but always finds both 
assistance and general respect. (See previous chapter on 
Power.) 

Much has been said of the control of power. Who can 
control power? Of course, only he who has greater power. 
But the very object of all inquiry connected with this subject 
is to find out how that greatest, strongest power, no matter 
who wields it, who is, in fact, the prmce, can be prevented from 
growing stronger than the interests of society require. Con- 
trol of power would mean, therefore, self-control, which in this 
case would have no meaning. There may be one authority 
controlling another, for instance, a council may control a gov- 
ernor; there may likewise be a check on the supreme power 
in various ways, for instance, by public opinion ; but, strictly 
speaking, the supreme power cannot be controlled as far as it 
exists, if there be any disposition to abuse it, which is espe- 
cially the case in all periods of intense political interest. The 
question then is, how to prevent the existence of too great an 
amount of power. 

CXX. One of the most common means resorted to are 
constitutions. Constitutions are the assemblage of those 
publicly acknowledged principles which are deemed funda- 
mental to the government of a people. They refer either to 
the relation in which the citizen stands to the state at large, 
and, consequently, to government, or to the proper delineation 
of the various spheres of authority. They may be collected, 
written, and may have been pronounced at a certain date, such 
as the constitution of the United States ; or the fundamental 
principles may be scattered in acknowledged usages and pre- 
cedents, in various charters, privileges, bills of rights, laws, 
decisions of courts, agreements between contending or other- 



WRITTEN CONSTITUTIONS. 337 

wise diffetent parties, etc., such as the constitution of Great 
Britain is. We hear, therefore, frequently of the constitutions, 
not constitution, of a realm or principality. Thus, the ancient 
fundamental laws of some of the Belgian states before the 
war of independence of the Netherlands against Spain were 
exceedingly complicated, consisting as they did of a great 
variety of special grants and charters as well as their partial 
nullifications.^ 

Considering how much more beneficial it is if an institution 
has grown out of the healthy action of a people and devel- 
oped itself along with the state of society, in other words, if 
an institution has its deep roots in the history of a nation, 
and, on the other hand, how lifeless the best-sounding written 
constitution remains if merely recorded in the archives, de- 
prived of the necessary fibres through which it draws aliment 
from the actual life of the people, many persons have thought 
fit to deride the idea of written constitutions, and have de- 
clared them to be useless.^ The great power of a precedent 
in England, and the hollowness of many declarations in the 
constitutions of some newly-emancipated nations, afforded 
them a strong contrast. There are writers on politics, indeed, 
who have condemned the whole idea of settled constitutions, 
asking whether a family father would believe that he could 
establish peace and harmony in his house by placarding at 
the door a series of regulations. This question rests on the 
unfortunate mistake of making no difference between the 
family and the state, treated of in a previous chapter. If the 
family grows very large, occupying several houses, and yet 



* For a classification of constitutions according to the various principles on 
which they are founded, as the subject has appeared to me, see the article " Con- 
stitution" in the Encyclopaedia Americana, or the same, copied in the London 
Cyclopsedia. 

=» * The English are constantly cited by the deriders of enacted constitutions; 
but it is forgotten that they, like any other people, enact "written" constitutions 
when necessary. They give real "written" constitutions to their colonies, 
Canada, New Zealand, etc. And they must do so. How else can they trace the 
frame of a new government ? 

22 



338 THE STATE. 

frequently assembles, it has even then in the family been found 
serviceable to settle certain regulations, and to adjust the dif- 
ficulties that may occur, by a family council of the elder 
members. Rights not only may be, but ought to be, clearly 
pronounced. 

CXXI. Those who dream of patriarchal, paternal, or what- 
ever other relations of the kind, between the government and 
the governed, in a nation at all advanced, claiming absolute 
power on the ground of natural love, which ought to exist 
between the prince and the subject, as a matter of course ob- 
ject to constitutions. Ferdinand VII. of Spain was told that 
God had made him father of his country (his mother lived in 
continued adultery), and that it was rising against God to 
attempt to deprive him of unlimited power to do good. The 
abject flattery of many courtiers, judges, and most officers in 
high authority under Elizabeth and James was equally, some- 
times still more, blasphemous. 

It will appear from the whole view of the state, and the 
relations of the individual to it, which has been taken in this 
work, that constitutions are indispensable. They will invari- 
ably be established, or naturally grow up with the progress 
of political civilization. For they are nothing more than the 
distinct acknowledgment and clear expression of certain prin- 
ciples deemed fundamentally and essentially important to the 
well-being of society and the due protection of the citizen : 
the higher the degree of civilization, the greater their clear- 
ness. Civilization invariably tends towards the clearer de- 
velopment of principles, in politics, as well as in any other 
branch. 

Written constitutions are desirable for the following 
reasons : 

I. Where the political life of a people has been unpropitious 
for the foundation and growth of civil institutions, they are 
frequently the only possible starting-point, and, however slow, 
superficial, or deficient their action may be for a long time, 
still they form often the first available means to give civic 



WRITTEN CONSTITUTIONS. 339 

dignity and political consciousness to a people, as well as the 
beginning of distinct delineation of power. The French, in- 
deed, have had many constitutions within the last fifty years , 
but similar phenomena will appear in other spheres. Talley- 
rand has sworn allegiance to a great many governments, 
Cranmer recanted about six times. Not, indeed, that I con- 
sider the latter as natural or excusable as the former. What 
had Talleyrand, or any Frenchman, to do, if the government 
of the country were changed ? 

2. Constitutions form, in times of political apathy, if not too 
great, a passage, a bridge, to pass over to better times. When 
civic consciousness is too weak, and patriotism too low, to 
repel encroachments by their own action, they are still some- 
times sufficient to do so with the aid of a well-settled and 
clearly pronounced constitution. 

3. It gives a strong feeling of right, and a powerful impulse 
of action, to have the written law clearly on one's side, and 
though power, if it comes to the last, will disregard the 
written law as well as the customary, yet it must come to the 
last before it dares to pass the Rubicon and to declare revo- 
lution. Many a time has power been checked by the appall- 
ing consciousness, Thou art going to break the fundamental 
law, the established law of thy land : into thy hands it was 
confided, and art thou becoming its assassin?* 

4. It is our duty to define things as clearly as we possibly 
can in matters of a jural character. Confusion is the very 
opposite to right. 



« The French revolution of 1830 affords a remarkable instance. For years the 
government was afraid to take certain steps, because it knew it was against the 
written contract; and when it finally did propose a gross violation of the charter, 
or rather its abolition, the consciousness of the people that it was Prince Polignac 
and the whole court party and ministry, not themselves, who were breaking the 
great pact, gave them an energy and buoyant vigor without which the revolution 
could not have been effected, or, if it could, certainly not so rapidly. There was 
a great degree of civil alacrity in that event. Nor would this powerful change 
otherwise have been immediately acknowledged by nearly all Europe. The so- 
called legitimate governments knew very well who had been the aggressor. 



340 



THE STATE. 



CXXII. Constitutions, however, are valueless without pub- 
lic spirit ; it is a serious error to believe that liberty can be 
made — can be decreed on parchment. This has been fre- 
quently used by absolutists as an argument against constitu- 
tions altogether. It is, however, no stronger an argument 
against them than against anything written in this world, 
whether it relate to religion, science, or law. There is not a 
written law which may not at times, and if the judges have the 
mind so to do, be stretched and distorted. When the spirit 
is gone, the letter is vapid. But it cannot be denied that the 
mere fact of distinctly pronouncing a certain principle in writ- 
ing can do much. Nor do we forestall by written constitu- 
tions the necessary development of institutions ; for as society 
is never stationary, so its political organization cannot be. 1 
have dwelt on this latter, important subject in the Her 
meneutics. 

Inasmuch, then, as right and law depend in a great measure 
upon distinctness (this may be traced in the history of politics 
or law, in any tribe whatsoever), and as constitutions con- 
tribute to give this distinctness, as well as to lead the people 
gradually to greater clearness, and inasmuch as all confusion 
in politics has a necessary tendency to abuse and tyranny, 
and written constitutions define the spheres of action of the 
various branches of government, written constitutions are 
beneficial ; and for those nations with whom the historical 
development has not been such as to lead them to a gradual 
and clearly acknowledged growth of fundamental political 
principles, for instance, the nations of Spanish origin in 
America, they are necessary. But they remain means, and 
we must beware of what has been called, in another part of 
the work, idolatry of the constitution ; for it is the living 
nation, the life of society, which is the object of the state, 
and therefore of the constitution likewise. 

CXXIII. A most effective means to prevent the natural 
expansion of power has been sought for in the division of 
power, which is, perhaps, not a very happy expression. The 



DIVISION OF POWER. 341 

general, and certainly the most important, division is, as is 
well known, into the legislative, executive, and judiciary, 
though this is not the only one. In Brazil there are four 
branches. The first French constitutions speak of the adminis- 
trative branch, as distinguished from the executive and legis- 
lative, and meaning the administration of the communes, etc. 

It is not unfrequently believed that this idea of the division 
of power is due to Locke ; more generally, Montesquieu is 
considered as the author who first settled it well. Aristotle, 
however (Pol., iv. 14-16), already makes this division, though 
I grant that only in modern times has this great principle 
fairly gone into operation. 

That a clear division of these authorities must necessarily 
at least retard the increase of power, is evident. It is for 
the science of politics proper to show the natural foundation 
of this division, as well as the vast advantage flowing from 
it, and that it is a most powerful guarantee of civil liberty, 
especially if united with certain others ; whatever opinion to 
the contrary may have become fashionable of late with a cer- 
tain mystic school who ridicule the division of power, asking 
where we find it in nature, and whether the small states, in 
which no proper division exists, are not some of the happiest. 

If the state is a jural institution, nothing can be more evi- 
dent than that a clear division of the government functions 
must aid in protecting the members of the state. It is objected 
that the branches were divided in the first French revolution, 
and yet what tyranny! But the true answer is, they were not 
divided : on the contrary, the French so-called republic was 
always materially a concentrated government. Absolute 
power had passed from the crown to the assembly, the com- 
mittee of public welfare, etc. Besides, there existed in other 
respects the greatest political confusion, which is always tyr- 
anny or soon leads to it. The people, that is, some of them, 
in Paris, resolved, demanded, dictated, besieged the legislative 
hall, or appeared in a threatening attitude at the bar of the 
assembly. That citizens have the right to petition is clear; 
that they may recommend certain citizens for certain places 



342 THE STATE, 

is equally clear, though it would be certainly a safe principle 
that only private recommendations ought to be given; but 
organized party meetings, recommending not one citizen but 
the entire personnel within a certain district at the change of 
an administration, certainly border very closely on political 
confusion, for it is not the people that make this selection. 
Even if the people of the whole district were unanimous, they 
would be but a very limited part of the whole. In reality, 
however, it is only the portion of the party in power within 
the district that assume this appointment. I call it appoint- 
ment, for we well know that recommendations of such an or- 
ganized sort go in their character much farther than simple 
petitions. Once more, confusion of branches, powers, and 
spheres of action is certain to lead to despotism. From 
the long accounts, contained in the papers, of a meeting held 
on March 7, 1837, in Philadelphia, in consequence of which 
a long list of candidates for various offices was recommended 
to the new President, it seems that it was of the kind mentioned. 
(See Niles's Weekly Register, Baltimore, March 18, 1837.) 

We farther hear that, in despite of all so-called division of 
power, the executive will, if strong enough, seizes upon the 
others, and how can they resist, since the executive has the 
actual power — the army and navy, the money and the distri- 
bution of honor ? In this objection, started very frequently 
by a writer who in his wishes belongs to the liberal portion 
of mankind, there are two mistakes : 

1. Power does not only consist in the army., navy, and 
money ; public opinion, which is gained by nothing so firmly 
as by a continued, even, and just administration of justice, 
and which has been frequently obtained by this alone, despite 
of the glaring corruption of the other branches, is power in- 
deed. The army and navy must first be gained. Though 
the executive may have the supreme command over them, it 
does not rule them like machines. 

2. It is wrong to argue that because, in times of extremity, 
one power may not be able to withstand another, therefore i*t 
is of no use. The division of power may prevent, and often 



i 



INDEPENDENCE OF THE JUDICIARY. 343 

has prevented, this very extremity. It is the same here as 
with constitutions : are they never worth anything because, 
in times of extremity, he who has the army will tear the 
charter and dictate a new one if he thinks proper — that 
is, if the current of events and of ideas of his party make 
it advisable ? 

CXXIV. The separation of the executive from the legis- 
lative is highly important for the simple reasons that, if 
united, power will decree laws to increase power, and specific 
laws or decrees will be made in specific cases, according to 
convenience. Few things, however, are more necessary in a 
well-regulated community than that laws be general rules, 
and not fickle, not vulgar, as Bacon calls them in his History 
of Henry VH. Even unsuitable laws lose very frequently 
part of their evil tendency by being acknowledged and not 
changeable according to single cases. Nothing, however, is 
of so vital importance, of so momentous influence, as the in- 
dependence of the judiciary, which has already been briefly 
touched upon. It is at once the noblest and most conciliatory 
principle in the state. It forms the choicest subject for the 
lover of civil history. By the independence of the judiciary 
is not meant separation from the rest of the state. The Turk- 
ish hakim or cadi is simply judge according to the written 
law, and always separate from the sabit, the executive officer, 
throughout the Turkish empire.' The hakim, however, is an 
arbitrary judge, as long as the interest of the pasha or sultan 
is not involved ; and, on the other hand, the Turk is not pro- 
tected against being put out of the pale of the law and dealt 
wiih according to entirely different interests or principles. 

Vagueness in the use of terms has done its mischief in the 
discussions on this subject. If independence is claimed for 
the judiciary by some, others, not unfrequently, understand it 
as if arbitrary power in the judges were meant, while, on the 



' Von Hammer, Political Constitution and Administration of the Osmanic 
Empire, vol. ii. page 388, in the German. 



344 ^-^^ STATE, 

contrary, we, the advocates of an independent judiciary, desire 
the individuals who may happen to be judges to be the 
very serfs of the law, but of the law alone — its organs, its 
proclaimers. And why ? Because the law is the only rule 
given for the regulation of the actions of the citizens, or ought 
to be the only rule ; because the law is the principle, and 
where this has not superior sway the accidental individuality 
of the person in authority must take its place, and there is an 
end of justice, of a strict government of law, of right — an 
abandonment of that principle on which we have ascertained 
the state to be truly and verily founded. The law, as I said, 
is a general rule, a principle ; it remains something abstract, 
until brought home to practical life, to the cases of reality, 
and when brought home, those who do so, those who fix and 
link the generality of the law to the individual case, ought to 
be placed in the best possible manner which human wisdom 
can devise for the unbiassed application of the abstract rule to 
the practical instance. It is not only that true justice be done 
according to the merits of each case, which makes this bring 
ing home of the law to every one so important ; liberty in its 
deepest meaning, individual and national, depends greatly 
upon it. Lord Strafford, the lofty absolutist and penetrating 
statesman, mentions in one of his first despatches after his 
arrival in Ireland, to Cooke, that one of the greatest restraints 
on his predecessor. Lord Falkland, had been that he could 
not meddle in causes betwixt party and party, " which cer- 
tainly did lessen his power extremely." Strafford adds, " yet 
how well this suits with monarchy, when they (the lawyers) 
monopolize all to be governed by their year-books, you in 
England have a costly experience ; and I am sure his maj- 
esty's absolute power is not weaker in this kingdom, where 
hitherto the deputy and council-board have had a stroke with 
them." Strafford saw right. Destroy the bulwark of the 
law (and you do destroy it as soon as you destroy the inde- 
pendence of the judiciary), and the mighty sea of power will 
soon break in upon the people. 

By the independence of the judiciary is meant a judiciary 



i 



INDEPENDENCE OF THE JUDICIARY. 345 

that in the administration of justice cannot be influenced or 
overawed by any one, or anything, either by monarch, presi- 
dent, people, or populace, but which is strictly dependent upon 
the law and the spirit which made it, so that no citizen who 
ought to be judged by it can be rent from it, or be judged 
or punished without judgment by the same, or otherwise 
be injured in any way, by the protection of the laws being 
withheld from him.^ The more deeply and earnestly we 
study history, the more sacred will appear this wonderful 
institution of an independent judiciary. 

The English or American judge is not severed from, but 
closely united to, the state. He stands under the law, he 
moves within the law, his authority, yielded to him by the 
people, is only given to him as the minister and applier of the 
abstract law, the principle; he does not make the principle; 
he is a member of a vast church, the church of the law ; he 
is not the arbitrary hakim, but a priest of justice, according 
to the rules of the people. (As to the necessity of interpreta- 
tion in applying the law in many cases, see Hermeneutics.) 
He stands under the public press and public opinion, he does 
not settle the question of fact, and finally he owes his position 
as a judge to the gradual constitutional development of the 
whole nation. 

CXXV. By means of an independent judiciary the citizen 
stands in each individual case, when the law comes home to 
him, under the constitutional protection of the court ; by the 
independence of the judiciary alone, the American judge can 
assume that elevated function of declaring a law, when it 
finally strikes an individual, to be unconstitutional, a principle 
of which the ancients knew very little, we may say nothing, if 
compared as to its practical use with modern times. By the 



* * And so, in democracies, if the judiciary becomes dependent, the popular 
power will break in upon the minority. This is not becaiise the power-holders 
are peculiarly wicked : it arises from a tendency of human nature as natural and 
sure as the laws observed by the chemist. 



346 THE STATE. 

independence of the judiciary alone, an independent develop- 
ment of the law, according to the genius of the people and 
the essential wants of the times, becomes possible. Without 
it, the best intended and most liberally conceived institutions 
and political organisms will always become what a distin- 
guished French jurist said in 1818 of the administration of 
justice and the constitution of his country: "We have con 
tented ourselves to place a magnificent frontispiece before 
the ruins of despotism ; a deceiving monument, whose aspect 
seduces, but which makes one freeze with horror when en- 
tered ! Under liberal appearances, with pompous words of 
juries, public debates, judicial independence, individual lib- 
erty, we are slowly led to the abuse of all these things and 
the disregard of all rights : an iron rod is used with us instead 
of the staff of justice."' 

The necessary independence does not only mean independ- 
ence of judges upon executive influence, it likewise means 
and demands the division of functions, already spoken of. 
For if the courts ought to be independent, and they are not 
strictly separate from legislative or administrative functions, 
they form bodies such as the ancient French parliaments 
were, which frequently, indeed, were of service to the people, 
considering the whole confused state of government, but 
which cannot be tolerated in a well-regulated state in which 
the various spheres of political action have been carefully de 
fined. The courts in other states were frequently charged 
with the collection of taxes and other administrative business. 
This likewise is opposed to the idea of judicial independence, 
which, I repeat, is nothing but another term for the independ- 
ence of the law, a means to insure the truth of the law, that 
is, that the law be law. 

No human wisdom can devise any plan which has not its 
inconveniences. The independence of the judiciary requires 
that the impeachment of judges should not be made a trifling 



« B^renger, De la Justice criminelle de France, Paris, 1818, p. 2 — a work de 
serving decided attention. 



INDEPENDENCE OF THE JUDICIARY. 34; 

affair, dependent upon momentary impulses. This, question- 
less, leads in some cases to considerable inconveniences. But 
all the evils resulting from the independence of the judiciary- 
are trifling indeed compared to the one great advantage — the 
government by law, and expulsion of the government by human 
individuality, which alone can be insured when the judiciary 
is independent. Means may be found to insure the one with- 
out compromising other interests. We all know that the 
infirmities of old age, in the natural course of things, impair 
the energies of the mind. There may then be good reason 
why a certain age should be fixed beyond which no judge 
should sit on the bench ; though the age of sixty years, as it is 
adopted by the constitution of New York, as the maximum — 
the age when the Spartans considered their citizens only ma- 
tured for their high council, the gerusia — appears certainly 
too limited. A statistical table of all the most eminent 
judges in England and America, with their ages, would in- 
controvertibly prove it. From a calculation I have made, 
though, I own, it has not been made on a scale so extensive 
as to be entirely satisfactory to myself, I should be inclined 
to say that seventy years would be a safer maximum age for 
the continuance of the judge in office. Still, no maximum 
age is infinitely better than appointments for a brief term, and, 
upon the whole, I believe that the fixing of a minimum age 
for a judge would be more important than that of a maximum. 
Bold action belongs to the younger age, from twenty-five to 
forty; wise counsel and unbiased calnmess to the riper years. 
The papal hierarchy, it strikes me, has never had occasion to 
regret the advanced age of most popes, so far as the wisdom 
of their counsel is concerned. 

An independent judiciary is likewise an institution which 
will regularly develop itself with the progress of political 
civilization. The patriarch is father, judge, priest, ruler — ■ 
everything that implies authority. The king in early times 
holds his courts in person, nay, it is his highest attribute, and 
justly so for those early periods, because the monarch is mis- 
taken for the state, and justice is its essential. David sat in 



348 



THE STATE, 



the gate and dealt out justice, and St. Louis and Louis XII. 
administered justice under an oak-tree. The German em- 
perors travelled from place to place to hold courts : " prin- 
cipes, qui jura per pagos reddunt." Now it is considered 
daring and high-handed interposition if the monarch inter- 
feres with the administration of justice in single cases, even in 
theoretically absolute monarchies. The history of the admin- 
istration of justice in England shows the same progress. The 
king's personal administration became rarer and rarer, and 
George III. consummated one period in the history of this 
important subject by declaring, in the beginning of his reign, 
" that he looked upon the independence and uprightness of 
the judges as essential to the imperial administration of jus- 
tice ; as one of the best securities of the rights and liberties 
of his subjects ; and as most conducive to the honor of the 
crown." As to the power of the British judge to declare a 
law unconstitutional, it is held by many that he does no** 
possess it. (See Dwarris on Statutes, beginning of vol. ii.) 
Lord Holt, however, did it; and what is the judge to do if 
one law contends with another, and this other be, for instance, 
the Declaration of Rights ? Can he possibly do anything 
else but declare the minor law to be second to the other, the 
fundamental one? (See Hermeneutics.) 

CXXVI. The more precise division of the functions of 
government on the one hand, and its increasing wants on the 
other, have raised, in modern times, a peculiar check on pub- 
lic power to the highest practical importance, and made of it, 
at the same time, the reconciling principle in cases of conflict 
between the legislature and the monarchical executive. In 
former times, when the monarch was a rich nobleman, with 
vast domains appertaining to his house, he, frequently, could 
carry on the government, such as it was, without much pe- 
cuniary assistance from the people. If they gave it, however, 
it was always by way of grant. Powerful changes took place 
in the course* of time ; the wants of governments became 
greater in the same degree as they changed from feudal gov- 



CONSTITUTIONAL SUPPLIES. 349 

ernments into national ones ; domains were alienated, wars 
became vaster; in fine, monarchs could not carry on the 
government with their private or crown revenues ; they were 
obliged to ask for supplies at the hands of those who had 
them. Some manly nations, most especially, however, the 
Dutch and the British, gradually did not only allow of no 
taxation without the consent of the tax-payer or his real or 
miagined representative, but they made frequently the grant 
of money, on their part, dependent upon grants of privileges, 
charters, or political freedom on the part of the receiver. 
At length the principle became distinctly acknowledged and 
solemnly settled with the English, that no taxation is lawful 
except it be granted by act of parliament. Other nations 
have neglected this. " The Castilian commons, by neglecting 
to make their money grants depend on correspondent conces- 
sions from the crown, relinquished that powerful check on its 
operations, so beneficially exerted in the British parliament, 
but in vain contended for even there, till a much later period 
than that now under consideration."* 

As the British executive can, of course, do nothing without 
money, and as the money may be refused by the commons, 
the latter have obtained an effectual check upon the former. 
The same is the case in France, and all truly liberal states in 
Europe. Hence the immense importance which the word 
" supplies" has acquired within the last century. The com- 
mons have no right to change ministers whom the monarch 
appoints, but if the commons refuse supplies the monarch must 
change the ministr>^; otherwise government must stop, and a 
revolution would follow. And thus it ought to be : if there 
be disagreement, who else but the people shall decide virtually 
and effectually ? Who else can finally decide ? For a history 
of this check, one of the most interesting features of modern 
civil history, I must refer to the best English and French his- 
tories, and the history of the various European states in the 



« Prescott, History of Ferdinand and Isabella, 2d ed., Boston, 1838, p. xliy 
Introduction. 



350 THE STATE. 

middle ages. The second part of this work will offer an 
opportunity of discussing the subject when a citizen ought 
conscientiously to vote against supplies, with the intention of 
embarrassing the existing administration, so that a v'^hange 
vo\y be produced. 



CHAPTER XII. 

Massification of Greek Constitutions by Aristotle. — Classification of Governments 
according to the Number of those who hold the Supreme Power. — Polity. 
Meaning in which it is used in the present Work. — Autarchic and Hamacratic 
Polities. — Autarchy, Hamarchy. — Absolutism. — Democratic Absolutism. — 
Different Operation in the Autarchy and Hamarchy. — Hamarchy materially 
republican in its Character. — The Polity of England is a Hamarchy. — The 
Polity of the United States likewise. — Hamacratic Character of the City of 
Rome. — Hamarchy rises with the Teutonic Race. — Anglican Hamarchy. 

CXXVII. Aristotle says that the political constitutions 
Aa Greece had followed in this order : monarchy, aristocracy, 
oligarchy, tyrannis, democracy. The same great philosophei 
gives other divisions upon different principles, and we find 
mentioned in ancient times, among others, plutocracies, or 
states in which riches form the foundation of supreme power. 
Aristotle was the first, I believe, who made a distinction be- 
tween the state constitution and the government. It is an 
important distinction, not even always properly kept in view 
by modern political writers, when they speak of the different 
** forms of government." Important as these forms are, ac- 
cording to the number of those who hold the supreme power, 
and although they constitute a prominent department of the 
science of politics, the office of which it is to inquire into their 
advantages and disadvantages under certain given circum- 
stances, still the essence or principle is more important than 
the form. A republic, as to form, may be cruelly oppressive; 
a hereditary monarchy may protect the individual and leave a 
healthful action in most directions to the community. Aris- 
tocracies may be nothing more than a combination of despots 
far more oppressive than absolute monarchs, or the people 
may love the aristocracy they live under, as was the case with 
the subjects of Venice, when those of their number who lived 
on the continent, voluntarily, and at the peril of losing their 

351 



352 



THE STATE. 



all, defended and saved the republic in 1509, against the pope, 
the German emperor, and the kings of Spain and France, 
united by the league of Cambray. The noble Bayard, who 
fought against them, said that the subjects of Venice are 
faithful to their government to an unsurpassed degree, " for 
never have masters on earth been more beloved by their in- 
feriors for the great justice which they always show them." 
There was a variety of governments around them, yet they 
seem to have had occasion to be satisfied even with an aris- 
tocracy, and a high-handed one too. It is often asserted, 
with what precise degree of truth I cannot say, that the aris- 
tocratic government of the canton of Bern is very popular. 

CXXVIII. For our purpose it is necessary to direct, then, 
our attention to a different subject from that of the individual 
or body of individuals in whose hands the supreme power 
may rest. I shall consider chiefly of what character the 
power is, and in what mode government operates. Let us 
call the latter the polity of a state. I do not believe that I do 
violence to the English language if I use the term polity in 
this more definite meaning, nor do I deviate too much from 
the sense of the original word ; for noXiTsia signifies, first, the 
relation of the free citizen to his state ; and that this is de- 
pendent upon, and closely connected, in fact, in certain re- 
spects the same, with the organic operation of the state, will 
appear immediately. I divide, then, for our purpose, all states, 
according to their polity, into autarchies and hamarchies 
(from ap.a, at the same time, jointly, co-operatingly, and apxetv, 
to rule). 

I call autarchy that state in which public power, whole and 
entire, unmitigated and unmodified, rests somewhere, be this 
in the hands of a monarch, or the people, or an aristocracy, 
it matters not for our division. Provided there be absolute 
power, or absolutism, a power which dictates and executes, 
which is direct and positive, we call the polity an autarchy. 
As the word autocracy has already its distinct meaning, 
namely, that of absolute monarchy, I was obliged to resort to 



A UTAR CHY AND HA MAR CHY. 3 5 3 

another, which would comprehend the absolute monarchy as 
well as absolute democracy or aristocracy. The democratic 
autarchy stands, therefore, in the same relation to a democ- 
racy in general, as the absolute monarchy or autocracy stands 
to monarchy in general. 

Hamarchy, on the other hand, is that polity which has an 
organism, an organic life, if I may say so, in which a thousand 
distinct parts have their independent action, yet are by the 
general organism united into one whole, into one living sys- 
tem. Autarchy acts by power and force ; hamarchy acts and 
produces as organized life does : in the autarchy laws are 
made by the power ; in the hamarchy they are rather gen- 
erated : in the autarchy the law is absolute, after it has been 
made ; in the hamarchy the law modifies itself in its applica- 
tion and operation. The political organism may prevent its 
action entirely, not by force, but simply because it cannot 
operate. In the autarchy the law is the positive will of 
power ; in the hamarchy it is much more the expression of 
the whole after a thousand modifications. Hamacratic poli- 
ties rest materially on mutuality ; autarchy, on direct power. 
The principle of autarchy is sacrifice ; the principle of ham- 
archy is compromise. Blackstone had in mind what I call 
hamarchy when he said, " every branch of our civil polity 
supports and is supported, regulates and is regulated, by the 
rest." It is not the " balance of power" which makes the 
hamarchy, but the generation of power. A hamarchy cannot 
be compared to a pyramid, or to concentric circles, or to a 
clock-work, but only to the living animal body, in which 
numerous systems act and produce independently in their 
way, and yet all functions unite in effecting that which is 
called life. If ever there was a republic of action, it is the 
animal body, and it is therefore the true picture of hamarchy; 
for from what has been stated it will be evident that hamarchy 
is materially republican, and though the form of government 
may be a monarchy, that is, though one individual may have 
nominally the supreme power, though the supreme power 
may be called the crown, though an individual may be desig- 

23 



354 "^^^ STATE, 

nated by birth to fill the place on the throne that is to be filled, 
yet that which makes the polity of that state a hamarchy is 
republican in its character, as I believe it cannot be denied 
to be the case in England, nor do jealous royalists consider 
it in any other light. On the other hand, that government 
mechanism which is called significantly, if not classically, 
bureaucracy, is decidedly autarchic in its character. 

It has been a great mistake to consider the law-making 
process only — which in fact means the law-pronouncing — of 
importance; for the process in which laws are generated, 
and, when pronounced, their mode of operation, are equally 
important. Autarchies oppress, if persevered in and applied 
to extensive territories, for the same reason that so-called 
universal monarchies have a ruinous effect.^ 

The dead weight of power oppresses, takes away from each 
minor activity its peculiar and characteristic function, and, 
though it may produce some specific astonishing effect, it 
saps the life ; it may raise pyramids, but it cannot produce 
healthy, happy cottages. 

CXXIX. Hamarchy, then, signifies something entirely dif- 
ferent from the ancient synarchy, which merely denoted a 
government in which the people had a share together with 



* Ancillon, Tableau des Revolutions du Syst^me politique de 1' Europe, part. i. 
tome i. p. 68 : "A universal monarcliy would be without doubt a great evil for 
the world, and the more an empire approaches to it, the more must the friend of 
mankind wish that it may stop in its progress. A universal monarchy would 
necessarily cause the oppression of the various nations, and the most crying abuse 
of power would be inseparable from the exercise of power; the force of circum- 
stances would establish an Oriental despotism without limit, without measure, 
without refuge ; it would prevent the development of nations, for emulation, 
rivalry, jealousy, and mutual fears are the means of perfection and the springs 
of activity for nations as well as individuals. At length it would bring down 
everything to the same measure ; under the level of uniformity would disappear 
this happy variety of thoughts and sentiments, of talents and tastes, of habits and 
actions, which is at the same time effect and cause of the progress of life, and 
together with the national existence would vanish the physiognomy and the indi- 
viduality of all nations." Mr. Ancillon was, at a later period, minister of foreign 
affairs to the king of Prussia. 



AUTARCHY AND HAMARCHY. 355 

the rulers proper.^ Disjointedness, and absolute independence 
of the parts, in some respects, as the pashalics in Turkey, 
by no means constitute, as it will have appeaj-ed, hamarchy. 
A united organism is requisite. The polity of England, with 
her independent judiciary, independent courts, corporations, 
commons, lords, king, etc., is a hamarchy. The various 
United States, with their counties, judiciary, state legislatures, 
and congress, and their thousand semi-official meetings, form 
a hamarchy. Some of the states, without the American union, 
would have little of a hamacratic character ; the federal gov- 
ernment, without the state legislatures and sovereignties, 
would probably soon lose its hamacratic character. 

CXXX. The independence of the parts can be carried much 
too far, as the activity of certain organs or systems in the 
body can be too intense, and disease must ensue. It is not 
the severance from the common system of life that constitutes 
the independence requisite to hamarchy. The Turks were 
before the gates of Vienna, diet after diet was held in Ger- 
many, but no united effort was made against the fearful enemy. 
Germans have fought against Germans, until their country has 
been drenched with the blood of her sons ; yet not on account 
of her hamacratic character, but only on account of its being 
a loosely united confederacy. France, on the other hand, has 
for centuries systematically concentrated all power, and is 
now only in the process of passing from autarchy to hamar- 
chy, restoring, as she does, political life to the various spheres 
out of Paris. That there are between the two extremes a 
multitude of shades, is clear. A part of a certain political 
system may be autarchic, and another have assumed more 
of a hamacratic character. It depends upon the mode of 
operation. 

One of the most striking proofs of the hamacratic charac- 



> [This word, so far as I can see, ought to denote coUegiality, or joint rule of 
several administrative officers. Hamarchy is a compound unknown to th< 
Greeks, wlr o form almost no compounds with a^ia.'\ 



356 THE STATE. 

ter of the English polity is this, that her gigantic capital, 
much vaster and richer than Paris, though of a country much 
smaller and less populous than France, has at no period so 
entirely absorbed the energy of the country, or so absolutely 
influenced the distant parts, be it in fashion, social intercourse, 
language, literature, taste, politics, or whatever else, as Paris 
has influenced and in fact guided France, even though the 
idea of fashion is so powerful in England. The word province, 
in France an expression which savors of disdain, has never 
acquired this meaning in England. A book is not disregarded 
in England because published in the " province," as it would 
be in France. Gaining or losing Paris has been gaining or 
losing France. It will not be always so in future. 

CXXXI. The Greeks had no clear perception of hamarchy. 
Government, with them, strongly inclined towards autarchy, 
democratic, aristocratic, oligarchic, or monarchic, as we shall 
see in the next chapter. Yet if we view ancient Greece as a 
whole, we shall find that, as such, she had a hamacratic char- 
acter, and many of the unrivalled traits in her glorious civili- 
zation are owing to this very fact. The Roman polity had 
more of a hamacratic character, yet only in the city itself, 
and could never reach a decided character of this sort in the 
higher political spheres, on account of the whole view the 
ancients took of the state ; though the Romans left a large 
sphere of free political action to the cities and provinces. 
The true germs of hamacratic polity must be sought for in 
the conquests of the Teutonic races, and the consequent feu- 
dal system, which indeed fluctuated long between barbarous 
anarchy or revolting lawlessness, and an auspicious hamarchy. 
When the cities with their charters, the provinces with their 
privileges, etc., etc., were added, the idea of independent action 
became clearer. In England, again, a sufficient union of the 
estates took place, not to permit anarchy ; yet by happily 
uniting into two houses, and not one, or not remaining divided 
into three parts, one of the great foundations of her hama- 
cratic polity was laid. The counties, etc., retained their pro- 



AUTARCHY AND HAMARCHY. 357 

portionate independence, so the colonies, so almost everything 
connected with England, and thus she has produced what we 
may well call the peculiar Anglican hamarchy, which has 
transplanted political life into many distant regions, and from 
which the seeds of constitutional liberty have been carried 
over the continent of Europe. It is mainly the substantial 
principles of Anglican hamarchy for which continental Europe 
is now striving and struggling. 



CHAPTER XIII. 

Political Spirit of the Ancients. — The Ancients had not what we call I.aw of 
Nature. — Essential Difference between the View of the State taken by the 
Ancients and the Moderns. — Greek Meaning of Liberty: absolute Equality, 
even disavowing the Inequality of Talent and Virtue. — Protection of the In- 
dividual, first object of the Moderns; the Existence of the State, of the An- 
cients : hence high Importance of Judicial Forms with the Moderns. — He who 
has Supreme Power, be it One, Many, or All, must not sit in Judgment. — 
Greek Laws often very oppressive to the Individual. — The most private Affairs 
frequently interfered with. — Socrates' View of the State — Lavalette, Hugo 
Grotius, and Lord John Russell, on the other hand. — Ostracism. — Causes of 
the powerful Change in the View of the State. — Christianity. — Conquest 
of the Roman Empire by Teutonic Tribes. — Feudalism. — Increased Extent 
of States. — Printing. — Increased Wants of Government. — Taxation. — Rise 
of the Third Estate. — Increased Industry. — Discovery of America. 

CXXXII. The civilization of the ancient Greeks and Ro- 
mans was in many respects higher than that of the moderns; 
in others, the latter would have the advantage in the com- 
parison ; and among those things in which the most civilized 
modern nations excel the two gifted and noble ones of 
antiquity, or perhaps that subject in which we most signally 
and characteristically surpass them, is public law, or that 
branch of law which defines the relation of the individual to 
the state. With the ancients, all that an individual was, he 
was as a member of the state. The moderns, on the other 
hand, acknowledge the humanity in the individual, besides his 
civility or citizenship. We speak of individual, of primordial, 
rights ; we consider the protection of the individual as one 
of the chief subjects of the whole science of politics. The 
nohrtxTj ^TziffzTjfiy}, or political science, of the ancients, does not 
occupy itself with the rights of the individual ; the ancient 
science of politics is what we would term the art of govern- 
ment, that is, " the art of regulating the state, and the means 
358 



POLITICS OF THE ANCIENTS. 359 

of preserving and directing it."^ The ancients start with the 
state, and deduce every relation of the individual to it from 
this first position ; the moderns acknowledge that the state, 
however important and indispensable to mankind, however 
natural, and though of absolute necessity, still is but a means 
to obtain certain objects both for the individual, and society 
collectively, in which the individual is, by his nature, bound 
to live. The ancients have not that which the moderns un- 
derstand by jus naturale, that is, the law which flows from the 
individual rights of man as man, and decides what the objects 
are which justice demands for every one and which the state 
is bound to promote and protect. On what supreme power 
rests, what the extent and limitation of supreme power ought 
to be, according to the fundamental idea of the state, — these 
questions have never occupied the ancient votaries of political 
science. 

Aristotle,^' Plato, Cicero, do not begin with this question. 
Their works are mainly occupied with the discussion of the 
question, Who shall govern ? The safety of the state is their 
principal problem ; the safety of the individual is one of our 
greatest. No ancient, therefore, doubted the extent of supreme 
power. If the people had it, no one ever hesitated in allowing 
absolute power over every one and everything. If it passed 
from the people to a few, or was usurped by one, they con- 
sidered, in many cases, the acquisition of power unlawful, but 



» Heeren, Sketch of the Political History of Greece, translated, Oxford, 1834, 
p. 140. 

* But even here we find that the gigantic mind of Aristotle had a glimmering 
of the truth far in advance of his times, when in his Politics, iii. 7, and Ethics, 
viii. 12, he finds the essential difference of states not in the number of rulers, 
but in the object of government, whether this be the welfare of the whole, in 
which monarchy, aristocracy, and polity are to be classed, or the interest of a 
few, in which he classes tyrannis, oligarchy, and democracy. Democracy he 
distinguishes from polity by this, that in the latter the most numerous class of 
citizens, the indigent, vote according to their separate interest, while in the abso- 
lute democracy, as we would call it now, the great number must always outvote 
the smaller number, and are led by a few. The modems know a third — the 
represer tative principle. 



56o 



THE STATE. 



never doubted its unlimited extent. Hence in Greece and 
Rome the apparently inconsistent, yet in reality perfectly 
natural, sudden transitions from entirely or partially popular 
governments to absolute monarchies, while with the modern 
European states, even in the most absolute monarchy, there 
exists a certain acknowledgment of a public law, of individual 
rights, of the idea that the state, after all, is for the protection 
of the individual, however ill conceived the means to obtain 
this object may be. 

The idea that the Roman people gave to themselves, or had 
a right to give to themselves, their emperors, was never aban- 
doned entirely, though the soldiery arrogated their election. 
" We may safely infer from this that the emperors themselves 
recognized that the Roman people had not deprived them- 
selves of the right to give themselves their masters." (Bar- 
beyrac, note on Grot., p. 441.) Or if the reader does not agree 
with me on this point, which cannot be discussed here, it is 
manifest, at least, that no legitimacy either by descent or 
divine right, or founded on a constitution, was acknowledged. 
Yet the moment that the emperor was established, no one 
doubted his right to absolute supreme power, with whatever 
violence it was used. 

CXXXIII. Liberty, with the ancients, consisted materially 
in the degree of participation in government, " where all are 
in turn the ruled and the rulers." Liberty, with the moderns, 
consists less in the forms of authority, which are with them 
but means to obtain the protection of the individual and the 
undisturbed action of society in its minor and larger circles. 
'Ehodspia^ indeed, signifies, with the Greek political writers, 
equality, that is, absolute equality, and laoz-qq, equality, as well 
as IXsodspia, is a term actually used . for democracy. (Plato, 
Gorg., 39.) It is, therefore, perfectly consistent that the an- 
cients (see Arist, Pol.) aim at perfect liberty in perfect equality, 
not even allowing for the difference in talent and virtue ; so 
that they give the TzdXoq, the lot, as the true characteristic 
of democracy. This is striking, and has a deep meaning. 



LIBERTY OF THE ANCIENTS. 361 

They were naturally and consistently led to the lot ; in seek- 
ing liberty, that is, the highest enjoyment and manifestation 
of human reason and will, they were led to their annihilation. 
to the lot, that is, chance. Many magistrates, the senate of 
five hundred, and others were chosen at Athens by lot.^ Hence 
again the phenomenon, that many ancient philosophers dis- 
cussing the question of the best government make the state 
absorb the individual (Plato, in his Republic), and take the 
Lacedaemonian constitution of Lycurgus as a model. The 
moderns, on the other hand, unite the two objects of discus- 
sion, liberty and the safety of the state, and can do so. The 
great problem with them is, how the utmost possible protec- 
tion of the individual, as an entire man, can be best united 
with the demands which society makes as such. The diffi- 
culty of politics and ruling, therefore, has infinitely increased, 
and is daily increasing ; because the individual makes greater 
claims with each advance in civilization. Hermodorus in 
Ephesus was banished because he was the best. The decree 

of the people was, ijiiicav ii-Qdk slq dvi^tarbq sffTW, ki 8i Tt<: TOiodro(;^ 
aXXrj Ts xai /xer' aXXcDv.^ 

The ancients do not discuss the rights of the individual : as 
opposed to the state, he has none. Hence the immense im- 
portance which the judiciary has acquired in modern times, 



* I must refer here to Aristotle's Politics in general. Herodotus, 3, 80, gives 
the essential character of ancient democracy. It is isonomy and lot. See also 
Herodotus, 5, 78, where democracy is commended. On isonomy, or equal right 
to power and liberty of speech free to all, see W. Wachsmuth, Hellenic Archae- 
ology (in German), vol. i. part ii. page 22; on democracy in general, ibid., p. 18 
et seq. Of great importance is likewise Boeckh, Economy of Athens, translated 
from the German — a standard book. 

[A few years before Dionysius the Elder became tyrant of Syracuse, the lot 
came in with the new laws and constitution of Diodes. Diod,, viii. 33, 34. 
Dionysius, according to Plut. Apophth. reg. p. 175 E, drew the lot to address 
the people, and then was chosen general, which paved the way for his tyranny.] 

2 [This saying — not decree — is recorded in Diog. Laert., ix. 2, and is thus 
translated by Cicero, Tusc. Disp.,v. 36, 105 : "Nemo de nobis unus excellat; sin 
quis extiterit, alio loco, et apud alios sit." The philosopher Heraclitus, the friend 
of this best citizen, said that the grown-up citizens ought all to be killed for 
banishiivg him.] 



362 



THE STATE. 



the certainty of the law as a general rule, and the minute 
attention paid to the fixed forms of its administration, so 
that it is considered of the highest consequence that no 
one shall be judged but by that tribunal before which he be- 
longs by law, or his natural judges, a principle held so impor- 
tant that it is inserted in the modern constitutions. The court 
of cassation (or quashing), the highest court of France, has 
nothing to do but to try whether in a trial any illegality of 
judicial form or error of law has taken place; and in the 
French charter, as amended in 1830, we read, "No one can 
be deprived of his natural judges." . . . "There cannot, in 
consequence, be extraordinary committees and tribunals cre- 
ated, under whatever title or denomination this might be." 
French Charter, 53, 54.' 

Indeed, what are all modern constitutions but fundamental 
laws, by which the supreme power is to be restricted to 
proper limits, and the individual rights of the citizen to be 
secured? The judicial formalities of the Greeks, however, 
were uncertain. The people stepped in, according to their 
pleasure, as in monarchical despotisms the despot does. 
When the Athenians proceeded against the commanders after 
the battle at Arginusae, the whole legal procedure was 
changed for this special case. According to the law of 
Canonus, the case of every commander should have been 
voted upon separately ; but in this trial the people voted on 
all commanders jointly. Some citizens remarked this dis- 
crepancy, but the crowd exclaimed, " It would be monstrous 
if the people could not do what they like," =" — precisely what 
Louis XIV. would have exclaimed, had he chosen to judge a 



» The charter of 1814, promulgated by Louis XVIII. when he ascended the 
Ihrone, read thus : " In consequence, there cannot be created extraordinary com- 
mittees and tribunals. The jurisdictions prevotales (extraordinary courts with 
military officers among the judges : see articles Privoi, Cours PrSvdtales, in vol. 
X. of the Encyclopaedia Americana), if their re-establishment should be fotlnd 
necessary, are not comprised under this denomination." 

» Xenophon, Grec. Hist., i. 7, 12. In the speech against Nesera, ascribed to 
Demosthenes, is a like remark, that the people may decree against the law 



ANCIENT AND MOD ERA LIBERTY. ^6^ 

case in his palace, and the parliament of Paris should have 
attempted to interfere. It was impossible, according to the 
course of political civilization, that antiquity should have ele- 
vated itself to the great idea of an independent judiciary ; nor 
have the moderns discovered the truth by abstract reasoning 
or natural law. We have been led to it by the peculiar political 
development of the European race through the lawless times 
of feudalism, and the elevated views of the moral character of 
man, raised by Christianity and the progress of civilization, 
closely connected with increased population. Having, how- 
ever, arrived at the idea, we cannot sufficiently value it ; and 
every flatterer of the crowd, when he wishes to persuade 
them that the people, being the masters, can do what they 
like, ought fearfully to pause and well weigh this mighty 
subject. And after having reached the idea it took a long 
time to make it a reality by defenses of it against the means 
which royal power had of controlling the judges. None on 
earth, neither people nor monarch, neither all, many, few, or 
one, have a right to do what they like. None, not even unani- 
mous millions, have a right to do what is unjust. Absolute 
power is not for frail mortal man : it ruins those subjected to 
it, and blasts the hand that wields it. 

CXXXIV. The idea that the state is everything and the 
individual has its value only inasmuch as he is a member of 
the state, had of course a very powerful influence upon the 
security of private property and upon taxation. Everything 
could be demanded for the state, and special taxation, like 
that peculiar regulation in Athens, called in Greek Xetroopyia^ 
by which single citizens were burdened with certain services 
or expenses, were but a natural consequence. It was not re 
pulsive to the feeling of justice in an Athenian to see a rich 
individual charged according to law with the expensive bur- 
den of defraying all the expenses of the choruses in the dra- 
matic performances called choregia, or the getting up of a 
public dinner of a tribe. (Boeckh, iii. 21, vol. i.) 

We may be somewhat reconciled to these special taxations 



l64 



THE STATE, 



when we consider that nearly all festivals and amusements of 
the Greeks had a religious character ; that, according to their 
views, the tutelary deity would have been offended at the 
omission of these festivals, and, consequently, their due cele- 
bration was of public importance.^ Still, the special charges 
must be explained on the ground I have mentioned. 

The ancient political philosophers do not omit to treat of 
education; on the contrary, they pay much attention to it, 
but never in any other light than that of the use to be derived 
for the state — its preservation. They know of no other ob- 
ject of education than the political one, to bring up indi- 
viduals fit to perpetuate the state ; it is their sole object. The 
highest object of education with the moderns is, as all sound 
works of education state, the development of man, the culti- 
vation of all his powers, and suppression of evil in him, the 
development of all that in each individual which he was cre- 
ated capable of being ; in short, the very highest object of 
education is the fullest and purest possible development of 
the individuality imprinted by the Maker upon each separate 
human being ; to bring forth the genuine individual man in 
his shape and character, removing all foreign, accidental, ob- 
noxious adhesion, and thus, by raising true men, to raise true 
citizens for the state and prepare man for his final destiny. 

There was no subject with which the state could not inter- 
fere in ancient times ; for the principle was, where the people 
are the rulers and the ruled, they cannot harm themselves — a 
principle not so wrong in ancient times as it is, as has been 
previously shown, in modern. The ancient politician saw 
chiefly but the state; the people, therefore, necessarily ap- 
peared to him as one mass. In modern times, when indi- 
vidual liberty is so important, we care little about the question 
whether the people can harm themselves, while we know 



» " We need not therefore be astonished when we hear that a city could be 
very seriously embarrassed by the want of sufficient means to celebrate its fes- 
tivals with due solemnity." Heeren, Sketch of Political History of Ancient 
Greece, p. 172. 



RESTRAINT IN ANCIEAT STATES. 365 

that the majority may harm the minority; the number, the 
individual. 

In Crete all the youths who were annually dismissed out of 
an Agele (division of youth) were required to be married at the 
same time (Strabo, x. 4, 20); to remain unmarried was punished 
in many Greek states. (Pollux, iii. 48 ; viii. 40.) Marriages 
with women not of sufficient size were punished in Sparta. 
Thus, king Archidamus is said to have been fined for having 
taken too small a wife. (Plutarch, in Agesilaus, c. 2.) What 
subject was not restricted by law in Sparta ? We read that 
one who preferred a rich to an honest but poor lover, and 
one v/ho did not love at all, were punished. (iElian, iii., Var. 
Hist, 10.) A youth in Sparta is said to have been punished 
for rapaciousness because he bought land for too low a 
price. (iElian, u. s., xiv. 44.) Common trades were not per- 
mitted to the Lacedaemonian citizen (Xenophon, Laced. State, 
vii. 2), which was the case in many other states. A story 
(Plut,, Inst. Lacon., No. 17) makes Terpander in the seventh 
century B.C. to have had his lyre snatched from him by an 
ephorus at Sparta, who cut one of the eight strings off, and 
long after, another ephorus (about 400 years B.C.) cut off four 
of the eleven strings from the lyre of the great musician 
Timotheus, as tending to corrupt music and morals. Pausa- 
nias saw the lyre hanging in the Skias at Sparta. The same 
story is told of Phrynis. (See Plut, Agis., lOi ; Pausanias, 
iii. 12, 8 ; with many other instances.^) 

I do not assert that laws equally interfering with private 
concerns have not been passed in modern times ; we have 
only to look at some enacted during the French revolution. 
Catharine of Russia did not hesitate to interfere with private 
rights. There are certain laws in Prussia and Austria founded 
entirely on the idea that the state must direct all things, that 
nothing of importance can take care of itself According to 



* I refer to F. W. Tittmann, Exhibition of the Political Constitutions of Greece, 
in German, Leipsic, 1822, especially to the first book. The reader will find there 
a careful and judicious compilation of the most important passages. 



366 THE STATE. 

the newspapers, a late Prussian decree prohibits the quoting 
of the price of foreign stocks, to prevent individuals being 
seduced into ruinous stock-jobbing. But we do not lay it 
down as a rule that the state is everything, and therefore has 
a natural right to guide and claim everything ; at any rate, 
this is not done by those modern nations who are politically 
farthest advanced, and where this interference takes place it 
is done under the pretence of, or really for the benefit of, the 
individual. Compare the freest modern states with the freest 
ancient. 

It was, therefore, consistent with the ancient views of the 
state, that Socrates declined availing himself of the oppor- 
tunity of escape offered by his faithful disciples. He answered, 
that the state had ordered his death, and, though wrongly, he 
had no right to withdraw himself from the law. It would be 
different had he put it on the ground that, in order to prepare 
his flight, his friends had been obliged to bribe the jailer, and 
that he would not participate in an act wrong in itself He 
does not seem to have put it on this ground of ethical deli- 
cacy, but simply on a politico-ethical ground. According to 
our views, all mutuality ceases as soon as the law demands 
my innocent life, which it is one of its main objects to protect. 
I cannot be held voluntarily to obey that law which seeks my 
innocent life and ceases to perform the first of all objects of 
the state, without which the others cannot be imagined. A 
martyr may prefer to die, in order to awaken a slumbering 
people, or for some extra-political reason; but no one will 
pretend to say that a Socrates, in our times, would do wrong 
to escape. On the contrary, without any other consideration, 
he would do wrong, in my opinion, not to escape, however 
deeply touching to every true heart the calm refusal of the 
spotless and noble Socrates must ever be. 

Can General Lavalette, according to the strictest code of 
morals, be reproached for having accepted his deliverance at 
the hands of his devoted, intrepid, and ingenious wife ? (See 
his Memoirs.) Did Hugo Grotius fail in the strictest duty of 
a citizen because he allowed himself to be carried in an old 



SLA VISHNESS NOT LOYAL TV. 367 

box, by his wife and maid-servant, out of the prison where 
Maurice unjustly kept him ? For whatever reasons Lord Wil- 
ham Russell declined to exchange clothes with Lord Caven- 
dish and to flee from prison, does not every one see at once 
how entirely out of place, with him, a tender regard to supple 
or perjured menials, and a king without faith or honor, would 
have been ? Or, when Catholics and Protestants burnt one 
another, should not an imprisoned man, destined for the rack 
and the stake, have seized upon an opportunity of escape? 
Declining it merely on the ground of its unlawfulness would 
eitlier be absurd, or a seeking of martyrdom very doubtful in 
its moral character;^ for the destined victim himself ought to 
prevent, as much as in him lies, the committing of such crimes 
in others, because the more crimes of the sort have been com- 
mitted^ the more difficult it becomes to return to a state of 
peace. There are many cases, even in common, even domes- 
tic life, in which there is greater love shown in avoiding than 
even in meekly suffering, which not unfrequently is allied with 
lurking vanity. 

Suppose false witnesses have brought a sentence of death 
upon me ; ought I not, in mercy to my judges, to escape if I 
can ? Would they not thank me for it, if, at a later period, I 
could prove my innocence? And what else is persecuting 
fanaticism but a false witness ? Let me not be misunderstood. 
I am not obliged at all events to escape. If death is offered 
me thus, I may say, " So be it; I am ready to seal my cause 
with my blood." I simply speak of the jural point in the 
matter, and I would add that abject slavishness is a hideous 
counterfeit of manly loyalty. When Stubbe, a Puritan law- 
yer, for having written a pamphlet against the intended mar- 
riage of Queen Elizabeth, had his right hand cut off, he waved 
his hat with his left, and exclaimed, " Long live the queen 
Elizabeth !" and with it wrote, afterwards, against the Catho- 
lics for Lord Burleigh. He was either a man of most un- 
common elevation of mind, or the very meanest of slaves. 



[« Comp. Matt. x. 23.] 



368 THE STATE. 

CXXXV. Connected with the ancient view of the state 
and of liberty were the institutions of ostracism at Athens, 
Argos, Megara, and Miletus, and of petalism at Syracuse. It 
has been seen that liberty and equality, equality and equal 
participation in government, were, with the ancients, but dif- 
ferent terms for nearly or entirely the same things. They 
soon felt that not only ambition and actual political power 
were dangerous to this equality, which, according to them, 
was the essence of liberty, but also distinction on other ac- 
counts, for instance, suavity, virtue, services performed for the 
state. Have we not instances in modern times of men be- 
coming highly dangerous on account of their popularity, 
however well deserving they may have been originally? Yet, 
with our representative system and more extensive states, the 
danger is not quite so great, though great it always will re- 
main in republics. " It was not considered unjust to take 
from any one, by a temporary banishment from the city, if it 
was feared that he might become dangerous to this freedom, 
the power of doing injury." (Heeren, Pol. Hist, of Greece, p. 
155.) Niebuhr, in his History of Rome, vol. ii. p. 454, Amer. 
edit, speaking of Manlius, says, " Thus, whether guilty or 
innocent, he became an extremely dangerous person, through 
a misfortune for which there was no cure ; and matters could 
not fail to grow worse and worse. This knot might have 
been solved by ostracism." 

Ostracism was materially a political, and not a judicial, in- 
stitution. The exostracized citizen was not punished, his for- 
tune not confiscated, as was the effect of actual sentences of 
banishment for crimes; no dishonor was attached to it. On 
the contrary, when it became dishonorable, because a despi- 
cable man of the name of Hyperbolus had been banished by 
this process, the institution fell into disrepute and was con- 
sidered as disgraced. Banishment by ostracism was no sen- 
tence, because there was no accusation ; and, what is more 
remarkable, at stated periods, it is said at the sixth prytany 
of the year, the people were called to vote whether there was 
occasion to resort to ostracism. (Comp. K. F. Hermann, Gr. 



PUNISHMENTS OF THE GREEKS. 369 

Staatsalterth., § 130.) There was no necessary ill feeling to- 
wards the banished, connected with ostracism. " Nothing," 
says Heeren (ut supra, p. 155), " can be more jealous than the 
love of liberty ; and, unfortunately for mankind, experience 
shows too clearly that it has reason to be so." ^ 

The excessive punishments of the Greeks ought likewise to 
be mentioned here. It is a principle in modern political law 
that each punishment ought to have its justification in its 
proportion to the offence. The absolute despot sees nothing 
in the crime so punishable as the offence, or the daring against 
his law. So did the Greeks know little of any gradation of 
punishment to be applied to an offender against the state. 
Their fines were excessive : confiscation of all property was 
frequent, and in many cases connected with death. (Boeckh, 
Economy of Athens, Book iii. 14, and iii. 12.) He who should 
propose to execute the claims upon Salamis against Megara, 
at the time of Solon (Plutarch, in Solon, c. 8 ; Justin, ii. 7, and 
others), or should use the money destined for the poor with 
regard to the theatre [d^iopixa] for any other purpose (Libanius, 
arg. to Demosthenes, Olynth. i.), or who should accept of a 
public office while he owed money to the people (Demosth. 
adv. Leptines, § 156; adv. Midias, § 182), or, if an archon, was 
intoxicated (according to the laws of Solon, in Diog. Laert., i. 
57) — for all these offences, and many more, the punishment 
was death. Draco punished even indolence with death. I am 
not disposed to ascribe this severity simply to the fact that 
democracy was absolute according to the ancients; for all early 
punishments are severe, because imprisonment is little known, 
and it lasts a long time before men find out that the severity of 
punishment does not constitute its efficaciousness. Still, no one 
will deny that these excessive punishments show likewise the 
absence of a proper acknowledgment of rights in the individual. 

CXXXVI. So powerful and thorough, so overwhelming 
and essential a change in some of the most elementary views 



» Tittmann, ut supra, p. 341, et seq., gives a proper representation of this pecu- 
liar institution. 

24 



370 



THE STATE. 



of the civilized nations has been produced by various causes 
of vast extent, of which I shall be able to touch briefly on a 
few only. 

Among the most active causes which wrought this great 
change in European civilization, I conceive to be these : 

Christianity. 

The conquest of the Roman empire by fresh tribes, which 
came from the north, and, being rude, with a keen feeling of 
individual independence and endowed with high capabilities, 
caused the system of feudalism to spring up. 

The increased extent of states and denseness of population, 
not only of cities, but of the countries at large. 

Printing. 

The increased wants of governments, the consequent in- 
creased value of money for them, the consequent increased 
importance of the tax-payer, the consequent increased im- 
portance of industry. Union of science and industry. 

Discovery of America. 

CXXXVII. I. Christianity. It may sound surprising that 
that religion, the founder of which did not only declare that 
his kingdom was not of this world, but who, it seems, care- 
fully avoided any discussion which might lead to political 
subjects,^ should nevertheless have had so powerful an effect 



» Christ answered the Pharisees, who had asked, " Is it lawful to give tribute 
unto Caesar, or not ?" perceiving "their wickedness," in seeking to involve him 
/n political discussions on so delicate a subject in the then state of Palestine, 
* Show me the tribute-money," and when the Pharisees said, being asked by 
him, that the image and superscription were Caesar's, he replied, " Render there- 
fore unto Caesar- the things which are Csesar's, and unto God the things that are 
God's." (Matthew xxii. 18-21.) It seems to me evident that Christ cannot 
6ave meant to give in this case a rule in politics ; for the image on the coin 
cannot be brought into any connection with the question whether it be lawful to 



CHRISTIANITY, 



nt 



on politics as I ascribe to it. It is, however, the very action 
of Christ's declaration that his kingdom is not of this world, 
upon so peculiar a state of things as that which existed when 
his religion began to be preached over Europe, that produced 
this political change. 

Around the Mediterranean we find in antiquity numberless 
bmall states, which have each a peculiar character, not only 
in a political point of view, but also in regard to religion. 
** The ideas of God and divine things had, we might say, local- 
ized themselves." ' The religions of all these separate states 
or autonomies are intimately interwoven with their political 
law. Relationship of tribes formed the only and yet a loose 
tie between some of them. Rome rose, and steadily con- 
quered state after state. Their political law was concentrated 
in Rome, and the various religions necessarily followed 
thither. But what were these religions when rent from their 
native soil ? The worship of Isis had a meaning in Egypt ; 
powers of nature, as they manifested themselves in that couii 
try, were revered and worshipped in her ; in Rome it became 
an idolatry without any other sense than that it was a sign 
and evidence of the victorious eagle of the city. All the vari- 
ous mythologies brought together into one place could not 



pay taxes, except in this way, that the image proves that the person represented 
has the supreme power, and that therefore it will be wise to pay taxes, unless 
there is sufficient hope for successful resistance. Otherwise Christ would at once 
have established by his answer that all conquest is right, all resistance of a noble 
people to a conqueror wrong; for surely there was no other connection between 
the Roman Caesar and Palestine than that of mere conquest. The Roman gov- 
ernment disagreed with the theocratic fundamental law of Moses. The Jews, 
under Titus, showed that they had not calculated their resources, by which they 
brought infinite misery upon themselves ; yet no one will be bold enough to say 
that, waiving the question of expediency, of sufficiency of means, the Jews had 
no right to attempt throwing off the Roman yoke. 

» Book I of vol. ii. of Ranke's Princes and People of Southern Europe in the 
Sixteenth and Seventeenth Centuries, chiefly from unprinted Reports of Legations, 
Berlin, 1834. This second and a third volume have also the separate title, " The 
Roman Popes, their Church and State in the Sixteenth and Seventeenth Centu- 
ries." The French translation has the title " La Papaut6." Neander, History 
of the Christian Church, Amer. trans, by Torrey. 



372 



THE STATE. 



but contend with and neutralize one another. Rome destroyed 
the various nationalities, and men began to suspect a commu- 
nion with each other, that there is something in all men 
which might be a bond, beyond the mere relation of the citi- 
zen to his state. It was the first dawn of a most glorious truth. 

At this moment appeared Jesus ; a religion was preached 
which gave to monotheism, until then a national worship of 
the Hebrews, a cosmopolitic character. All men can become 
Christians, all are called upon to become such. The founder of 
the Christian faith had abstained not only from touching upon 
politics in general, but from any question which does not 
directly belong to religion and morality or is not most closely 
connected with either. Neither science, nor industry, nor law, 
whether civil or penal, nor the principles which govern the 
physical well-being of nations, the exchange of their labor, in 
a word, what we treat of in political economy, nor nature, lit- 
erature, poetry, nor metaphysics proper, except in as far as 
it is connected with questions of religion, for instance the im- 
mortality of the soul, are ever touched by him. Not even 
the soothing and elevating admiration of God's creation is 
made a subject of his instruction, perhaps as too much de- 
pending upon climate, national development, and degree of 
civilization. Nothing in what he has taught or ordained can 
be an obstacle in the way of his religion being received at 
once by all nations and all classes of society ; the lowliest 
slave may embrace it as well as the mightiest magistrate. And 
what does this religion teach ? Among other things, that a 
benignant deity, ready to forgive the sincere penitent, is not 
to be propitiated by any outward or inward things, except by 
purity of soul, and that there is a life beyond this present one, 
an infinite life beyond this finite one, the peculiar character of 
which will greatly depend upon the purity or impurity of the 
life this side the grave ; and not upon birth, not upon fortune, 
not upon caste or color. A spiritual God, not attached to any 
nationality, is preached to all men, whatever language they may 
speak, whatever country they inhabit — a father to all men. 

The moral value of the individual became thus immeasur- 



CHRISTIANITY, 373 

ably raised. Every one is declared to have a moral being of 
iiis own, with high responsibilities, to answer for hereafter ; 
no one will find favor before the high judge on the ground 
that he was born in a certain country or descended of a cer- 
tain class. A God has been proclaimed to be the God of all 
men, high or low, distant or near ; a God before whom all are 
equal. The state could no longer remain all and everything; 
a territory had been discovered beyond the state ; man is 
something, and something important, besides his being a citi- 
zen ; he is a man for himself, a moral agent, called upon by 
the Almighty himself, not any longer imagined as having any 
national attribute, to fulfil his duties and to receive his reward 
according to his deeds. The farther this religion extends, the 
more its preachers insist that no language, no political limits 
are boundaries for Christians, as members of their one great 
church. TertuUian says, "At enim nobis ab omni gloriae et 
dignitatis ardore frigentibus nulla est necessitas coetus, nee 
ulla magis res aliena, quam publica. Unam omnium rempub- 
licam agnoscimus, mundum." (Apol., cap. xxxviii.) "No- 
thing is farther from us than the state. We acknowledge but 
one state — ^the world." 

The power of all states had concentrated in Rome ; the 
many national religions had neutralized each other. There 
was but one power which seemed real and independent — the 
emperor. Temples were erected in honor of him ; sacrifices 
were brought to him ; oaths were taken by his name ; his 
statues offered an asylum. The worship of the emperor was 
often the most zealous and fervent. (TertulL, Apol., cap. 
xxviii.) Here then was no national or state religion, but 
power and religion were actually one. It is a transitory state 
of things which fills with the deepest awe. In sacrificing to 
the imperator, man lowered himself to the deepest slavery. 
The national religious fervor was extinguished, the inspiring 
poetry of religion was destroyed ; it was deification of power, 
indeed ; the apotheosis of might. But now Christianity rose ; 
it called upon men as moral beings, to the lowest of whom its 
founder lowered himself; it appeared "like a morning of a 



374 ^-^^ STATE. 

new day." The apsis of the basilica contained an Augusteum ; 
the statues of the Caesars were divinely worshipped ; but now 
they were exchanged for pictures of Christ and his apostles.' 
It is not my task to depict here how that religion, which had 
fled to the catacombs, stepped finally forth victorious into the 
open day, until we see the monogram of Christ in the labarum 
of Constantine. Wherever it spread, and however soon the 
peaceful message of Christ was turned into a blood-stained 
law of persecution, yet the individual moral value of man was 
acknowledged, and something beyond the state, higher than 
its supreme power, was preached, so that the state became the 
means to obtain something still higher. What a difference, 
when we find the greatest philosopher of antiquity proving, 
as he thinks he does, that the barbarians (foreigners) are made 
to obey, to be the slaves of, the gifted Greek race, and, on the 
other hand, Pope Gregory the Great, in the sixth century, re- 
ferring to the natural law of original liberty, ordering the 
manumission of bondsmen, and a priest recommending to 
Louis the Pious the giving >l alms and manumission of 
bondsmen as works of equal merit' 

CXXXVIII. 2. Conquest of the Roman empire. When Chris- 
tianity had begun somewhat to reform the old or Latin world, 
if not to any great extent the deep degeneracy of morals, yet 
the views of man, it soon extended to those tribes who were 
destined to uproot decaying Rome. They came fresh from 
the north, with the ardor of youthful tribes, a fulness of glow- 
ing souls, with no settled civilization among them, hence free 
and ready to embrace Christianity with the energy of young 
nations and a religious fervor peculiar to the northern tribes. 
They were of Teutonic origin, and had that national single- 
ness of heart by which most Teutonic tribes have ever dis- 
tinguished themselves from the Latin population of Europe, 

* E. Q. Visconti, Museo Pio-Clementino VII,, p. loo, edit, of 1807. I take 
this quotation from Mr. Ranke's work mentioned above in note i, p. 371. (His* 
\)ry of the Popes, i. 28, Amer. edit.) 

• Smaragdi Abbatis Epist. ad Ludov. Pium apud d'Achery, Spicileg., t. v. p. 5 1. 



ENLARGEMENT OF STATES. 375 

however rude we know them to have been at their first 
appearance, when yet in a state of great barbarity. 

The northern nations are less excitable than the southern 
race, hence they cannot so easily be moved in masses. With 
the Greeks, so excitable by nature, everything became an im- 
petus to the mass ; the northern man, calmer, more phleg- 
matic, duller, weighs things more individually, learns to con- 
sider the state in relation to himself, and is led more easily to 
reflect on individual interests — on rights. The conquest and 
consequent distribution of the Roman provinces among the 
conquerors produced feudalism, out of which lawlessness, but 
also the insisting upon individual independence, and, later, in- 
dividual right, the feeling of individual honor and importance, 
grew up, a direction of the mind which was by no means 
changed when the cities and other communities entered into 
that chequered and curious system. 

CXXXIX. 'i^. Enlargement of states ; denseness of population. 
It has been stated already that the politics of the ancients 
were essentially city politics. As the word is derived from 
TToAfc, so actually did city and state mean with them the same. 
(Respecting the meaning of r.ohq^ and the difference between 
it and Idvoq, state and nation, see Aristot, Polit., p. 235, ed. 
Casaub. See likewise this work, book ii. sect, xxix.) The same 
is true in regard to civitas. They did not know other states of 
freemen. Persia was nothing but a number of countries con- 
quered and held together by the victorious tribe of the Per- 
sians. They formed a ruling nobility. Where, however, the 
people can conveniently meet, where the ruling community 
can assemble at any moment, it is much more natural that the 
majority should enjoy unlimited power, than in states where 
the people cannot be seen at once, where questions must be 
treated more abstractedly, and where representing agents, 
speaking for large numbers, must be heard. Besides, no 
proper debating is possible where the people themselves 
meet ; the questions must be prepared beforehand by some 
authority, so that the vote can be ay or no. It was so in a 



376 THE STATE, 

considerable degree In Greece; it is so in the democratic can* 
tons of Switzerland, for instance, Uri, Glarus, Schwyz.^ Yet 
debating, however abused by many, is one of the chief means 
to obtain an acknowledgment of individual rights, and to pre- 
vent measures injurious to them. Such measures have ever 
been passed in haste by the suspension of rules, if they have 
oeen passed in deliberative assemblies. 

So long as all citizens knew each other personally, the ab- 
stract development of the just, separate from the good, was as 
difficult as in the family. 

Increased population has likewise contributed much, both 
by the necessity of imagining the people in the abstract, and 
by bringing individuals, personally unknown to one another, 
into contact. Increased population alone had a most decided 
effect upon the administration of justice; for it necessarily 
developed the institution of the advocate, without which jus- 
tice has flourished nowhere. See Feuerbach's interesting 
remarks on the subject in his Considerations on Public and 
Oral Administration of Justice, Giessen, 182 1. The advocate 
has to defend the rights of the citizen in the abstract, and to 
defend 'them to the utmost — a remark which in part applies 
to representatives. Representatives are much more apt to 
insist upon the rights of their constituents than they them- 
selves in many cases would be. Who will tell a citizen in 
the market, voting on a law for himself, not to give up a right 
if he chooses ? I am well aware that the members of many 
estates in the middle ages were less jealous of their rights — 
except as far as pecuniary interests were involved — than the 
Greeks in the agora ; but were they representatives ? Had 
they to give an account ? The more the member of the 
estate assumed the character of a representative, the more he 
was obliged to defend the rights of his constituents. 



* The description of a Landtag, or annual general meeting of the people, in 
one of these cantons, is very curious and instructive for the politician. The 
great deficiencies of direct democracy, unmediated by representation, are mani- 
fest. Personality must prevail ; it cannot be helped, according to human nature. 
The state, the citizen's rights, etc ^ are never taken, in the abstract, on their own 
absolute ground. 



INDUSTRIAL CLASS. 



377 



CXL. 4. Prhiting. The art of printing, in becoming the 
great moving agent of European mankind, an agent which 
increased action in intensity and extent, naturally propelled 
men also in the sphere of the presentation and acknowledg- 
ment of individual rights. Printing is light : on whatever 
subject it falls it shows it clearer. 

5. Increased importance of mcney, industry; increased con- 
sideration of the industrial class. Ancient governments had 
originally no pecuniary wants. The army consisted of citi- 
zens, unpaid for the service ; the vessels were fitted out by 
way of special taxation, as before mentioned, under the name 
of Xenoopyia. (See Heeren's work, quoted several times.) 
Rome was a conquering state, and obtained her treasures 
from subjected provinces. In the times of feudalism, govern- 
ments wanted likewise comparatively but little money. Few 
concerted national actions of a peaceful character took place, 
the feudal monarch supported himself by the income of his 
lands, and for war every vassal armed himself and his 
men. 

In more modern times, however, when governments had 
become cabinet governments, the expenses of cabinet armies, 
cabinet wars, and a thousand other undertakings, caused great 
expenses, far exceeding the revenues derived from crown 
domains. Whence can the money come ? Conquest cannot 
last forever. Labor is the only permanent source of money ; 
it must come, therefore, out of the pockets of the people, who 
consequently attracted more attention. Nobility and clergy, 
paying no taxes, or very limited ones, were of no use as to 
furnishing money. The industrial classes rose in importance, 
their situation and rights began to be discussed ; bondage was 
more and more contracted and removed, free industry became 
to be considered as the true source of public wealth, and the 
industrial class, formerly consisting of slaves or serfs, was 
acknowledged as honorable. 

In the early times of Thebes, no one was admitted to a 
share in government who had carried on any trade for the 
last ten years (Arist, Pol., iii. 5) ; in our times, polytechnic 



378 '^HE STATE, 

schools are established in many countries' which give a thor- 
ough and enlarged education and corresponding standing in 
society, to the industrial class. 

By the continued pecuniary wants of governments, those 
who have to pay the money have' obtained, as has been 
shown, a most peculiar, salutary, and continued control over 
government in those states in which the primitive and ancient 
principle, that he who has to pay money must be asked for it, 
and therefore may refuse it — common throughout in the mid- 
dle ages — has been retained or re-established. Even in states 
where this has not taken place, the governments are obliged 
to treat the people with far different regard from what they 
would do did they not stand in need of money. The want 
of money and the alienation of crown domains have given 
the commons an effectual check upon government, for which 
we cannot imagine any other possible political contrivance 
equally efficient, safe, and easy in operation. 

The history of the industrial class from the times when 
slaves only carried on the different trades, to the period when, 
though practised by free men, they nevertheless were de- 
grading in a degree, and again to our own times, when their 
alliance with the sciences becomes daily closer and closer — a 
part of history in which that of the rise and importance of 
cities largely enters — is of the highest interest in the history 
of civilization in general. 

The large body of the people have entirely changed their 
position, and their rights are acknowledged accordingly. As 
late as at the French diet of 1 6 14, the speaker of the third 
esuate was obliged to address the king on his knees, while 
those of the clergy and nobility addressed him standing. 
When president De Mesnes, deputy of the third estate, ven- 
tured to say that "France is the common mother of all, and 
has nursed all at the same breasts," and that the third estate 
are the younger brothers, and that if treated as part of the 

* I have enlarged upon this subject in my " Constitution and Plan of Educa- 
tion for Girard College for Orphans," printed by Order of the Board of Trustees^ 
Philadelphia, 1834. 



DISCOVERY OF AMERICA, 375 

same family they would honor and love the others, he gave 
great offence to the nobility, and their president complained 
on the spot that " the third estate intended to establish frater- 
nity with them, as if they were of the same blood and equal 
virtue." Now the king of the French is called the king of the 
large class of citizens (commons) by way of excellence, and 
Mr. Dupin, the procurator- general of the court of cassation, 
and president of the chamber of deputies (speaker of the com- 
mons), in his late famous argument on duelling in that court, 
said, "As to the villanous serfs from whom we of the present 
day have the honor of descending," etc. (French papers of 
June, 1838.) 

Science is daily adding to the importance of all industrial 
activity and giving rapid increase to the vivid intercommuni- 
cation of near and distant communities, and with it elevating 
the great body of the people. Events such as the arrival of 
the first steam-packet of a regular line, in the month of April, 
1838, at New York from England, reducing time and space, 
are exponents of most powerful changes. More, tafinitely 
more, can be done in the same time, with the same capital ; 
while the rapid exchange of knowledge increases greatly the 
intensity of action. 

CXLI. ^. Discovery of America. Of the many consequences 
of the discovery of America, deeply affecting the whole of 
modern European history, I will mention here only the expan- 
sion of commerce and its increased importance — another 
branch of industry, with the growth of moneyed capitals and 
their increased importance ; while until then wealth had con- 
sisted almost solely in real estate, and the land was owned by 
the nobility or the church. Nobility depended upon birth, 
but money could be acquired by every one. Money must be 
acknowledged in history as a very powerful popular agent. 



END OF PART FIRST. 



PART 11. 



POLITICAL ETHICS PROPER. 



BOOK III. 

POLITICAL ETHICS PROPER. 
CHAPTER I. 

Reciprocal Relation of Right and Obligation. — The more Liberty, the more 
Rights, hence the more Obligations. — Danger of Absolutism in Republics, 
without due Attention to Political Ethics, — Additional Reason of their Im- 
portance derived from our Race. — Another Reason, from the Period in which 
we live and the Direction which the Study of Political Sciences of late has 
taken. — Private Morality necessary for Public Success, especially in Free 
States, yet not sufficient. — Justice and Fortitude or Perseverance chief Virtues 
in Political Life. — Justice the Basis of the other Virtues. — Reputation for 
Character of Individuals and States chiefly founded upon it. — Power and 
Passion equally apt to blind against Justice. — Justice affords Power. — Coteries 
are unjust because they see distortedly. — May we do what the Law either 
positively, or by not prohibiting, permits ? 

L It has been my endeavor to show, in the first part of 
this work, the original connection between right and morality, 
inasmuch as right is a relation necessarily proceeding from 
the moral character of men, and which can possibly exist 
only between moral beings. This connection, however, ex- 
tends farther: it is a lasting one. Where men, of whatsoever 
condition — rulers or ruled, those that toil or those that enjoy, 
individually, by entire classes, or as nations — claim, maintain, 
or establish rights, without acknowledging corresponding and 
parallel obligations, there is oppression, lawlessness, and dis- 
order; and the very ground on which the idea of all right 
must forever rest — the ground of mutuality or reciprocity, 
whether considered in the light of ethics or of natural law — 
must sink from under it. It is natural, therefore, that wherever 
there exists a greater knowledge of right, or a more intense 
attention to it, than to concurrent and proportionate obliga- 

3^3 



384 POLITICAL ETHICS. 

tion, evil ensues. What may thus be found a priori is pointed 
out by history as one of its gravest and greatest morals. The 
very condition of right is obHgation ; the only reasonableness 
of obligations consists in rights. Since, therefore, a greater 
degree of civil liberty implies the enjoyment of more extended 
acknowledged rights, man's obligations increase with man's 
liberty. Let us, then, call that freedom of action which is 
determined and limited by the acknowledgment of obligation, 
T liberty ; freedom of action without limitation by obligation. 
Licentiousness. The greater the liberty, the more the duty. 
For, the less bound or circumscribed we are in our actions 
from without, the more indispensable it becomes that we bind 
ourselves from within, that is, by reason and conscience. This 
is the fundamental law of all political ethics, applicable to all 
periods and all political relations. 

Yet there are weighty reasons, which demand of us, in par- 
ticular, that we should earnestly and conscientiously consider 
this fundamental law in its many applications and binding 
consequences.^ 

II. Towards the end of the preceding book, the different 
character and yet equally injurious effect of monarchical and 
democratic absolutism have been spoken of; for our present 
purpose it is necessary to say a few more words on this subject. 
Monarchical absolutism, it was shown, is not real, in so far as 
the monarch, individually, can have no power; it must be lent 
him, he must be supported; and, again, it is substantial, in so 
far as individual responsibility goes. In his name the acts are 
done ; of him the people, once risen, demand justice, and to 
him the wrongs of his menials are ultimately laid. However 
great his power, however many thousands he may find ready 
to do as he bids, still, what is done is at his peril. There is a 
visible despot, and therefore a visible malefactor when the 



» Reciprocity, as a necessary characteristic of right, and absolutism (which at 
once ensues where this reciprocity is denied), as well as the inalienable moral 
character of man, and the primary foundation which this character forms for all 
jural relations, have been, the author hopes, sufficiently treated of in the first part. 



POLITICAL ETHICS, 385 

time of reckoning comes ; while the consciousness that he 
must lend his name to all acts, and that " the water, when 
calm, supports the boat, but, if roused, will overwhelm it,"^ 
may keep even the Chinese emperor from too oppressive 
measures.^ Democratic absolutism, on the other hand, is 
real, inasmuch as it demands no support; it is an over-flood- 
ing power itself; and it is not substantial in so far as it 
is nowhere visibly embodied ; it acts, it strikes, with fear- 
ful certainty ; but the moment after, where can the author of 
the deed be grasped? Responsibility vanishes ; the injured 
party cannot seize it, and the absolute actors neither fear the 
rising of those over whom they sway, nor do they themselves 
feel so distinctly their responsibility, because it appears di- 
vided. Their conscience feels appeased; although, as we 
have seen, there is, in fact, no divisibility of anything which 
belongs to morals.^ But liberty, or untrammelled action, with- 



* A Chinese emperor — so say the ancient books of the Chinese — said to his 
heir, " You see that the boat in which we sit is supported by the water, which at 
the same time is able, if roused, to ovei-whelm it : remember that the water 
represents the people, and the emperor only the boat." T. F. Davis, The 
Chinese, vol. i. p. 212. 

" The same author makes the following remark (vol. ii. p. 428) : " The emperor 
— the theoretical father of his people — does not find it so easy openly to impose 
new taxes as his necessities may require them ; and his power, though absolute 
in name, is limited in reality by the endurance of the people, and by the laws of 
necessity." See likewise Book ii. chap. 6, \ 65 et seq. 

3 Many years ago, on my way through Geneva, I became acquainted with a 
member of the former French Constituent Assembly, who had always acted with 
Robespierre, so long as the latter was at the head of his party. The manner in 
which this exile spoke of the " poor Robespierre," *' the virtuous man to whom 
sufficient time had not been allowed to develop his plans," greatly attracted my 
interest. For the first time in my life I saw, face to face, one who had acted in 
those scenes, to me already seeming like a distant and fearful history. I could 
not help putting a number of questions as to the massacres and those enormous 
sacrifices of life, when he spoke of liberty. When I suggested that surely for 
the priests who were slaughtered there was no liberty, he ansv/ered that it was 
believed they conspired with the foreign armies. When I repeatedly urged the 
question whether they really did conspire, whether there was any proof, he would 
only shrug his shoulders and say, "On le croyait, mon cher." This On made a 
very deep impression upon me, which time has not effaced; and has repeatedly 
recurred to my mind in meditating upon politics and history. 

25 



386 POLITICAL ETHICS. 

out conscientiousness of action, which we have called licen- 
tiousness — rights, I repeat, without acknowledged obligations 
— necessarily lead to absolutism, first to democratic, and, 
through it, generally to monarchic. A sincere reverence, 
therefore, for liberty demands imperatively that we should 
well know our political obligations, both that liberty may not 
degenerate into absolutism, and that, on the other hand, we 
should feel our duty in prizing, cherishing, and supporting, 
keeping, watching, and jealously defending this last and 
highest of earthly goods, lest the forms of freedom with the 
spirit of bondsmen become only the fitter means of thraldom. 
For a government which rules with the traditional forms of 
past liberty over a servile people shifts its responsibility of all 
odious acts upon the people themselves. *' Parliaments with- 
out parliamentary power are but a fair and plausible way into 
bondage," was the ruling maxim of Pym. And this " parlia- 
mentary power," of course, presupposes parliamentary spirit, 
that is, true love and esteem of liberty. Tyranny and mere 
tranquillity are things for which men may be trained, into 
which they may be forced. There is no more quiet and peace- 
able people on earth than the Chinese. But liberty is too 
noble in its nature to be forced ; to support, enjoy, and per- 
petuate it, man must cultivate his best and noblest parts.^ An 



* Quiet has frequently been mistaken for civilization. The Chinese have a 
saying, " Better a dog in peace than a man in anarchy." Mr. Laplace, a French 
circumnavigator, says, " I repeat that the Chinese are very much our superiors in 
true civilization — in that which frees the majority of men from the brutality and 
ignorance which, among many European nations, place the lowest classes of 
society on a level with the most savage beasts," and Mr. Davis, ut supra, vol. ii. 
p. 29, adds, " Monsieur Laplace is quite right : the lower (Classes of the Chinese 
people are better educated, or at least better trained, than in most countries." I 
fear that the words " or at least better trained" contain the essence of the remarks 
of both these gentlemen. If we peruse the Chinese novels which have been 
given to the Western public and are represented by the best Chinese scholars, 
among others by Mr, Davis himself, as faithful pictures of their life, and which, 
indeed, bear great internal evidence of truth, we shall not feel tempted to desire 
to exchange our civilization for theirs, however willingly we may acknowledge 
all those points in which they are really our superiors. Rather all the disturbance 
of the West, so that it be a fermentation which promises a better, purer state, 
than Chinese peace and stagnation. 



POLITICAL ETHICS. 387 

active and preventive police may do much towards making fit 
subjects ; but the essentials of a freeman are within ; they 
cannot be forced upon him from without ; they must grow 
out of his moral nature. They require character, love of 
justice, love of truth, self-respect, devotion to our neighbors, 
esteem of our kind, and ardor of cultivation. 

III. As men, therefore, and especially as freemen, we are 
bound to acquaint ourselves thoroughly with our ethic rela- 
tions in politics. We shall find that we are not the less so if 
we contemplate to what race we belong and in what period 
we live. 

From the vast continent of Asia it appears that all civiliza- 
tion originally flowed, and to it we are invariably led, as to 
the fountain-head of history. It is there that all those reli- 
gions originated which count the largest number of votaries;^ 
there that the ancient Sanscrit was spoken, the grandest idiom 
uttered by human tongue, and the earliest sister of so many 
Western languages ; ^ there that traffic commenced, and larger 
empires first were founded; and thence that we received most 
of the first inventions in all the simpler and therefore most 
important mechanical arts. But the Europeans and their 
descendants in other parts of the globe have perfected and 
developed all these. Christianity rose in Asia, indeed, but 
what effect has it exercised on the Asiatic nations ? In 
Europe it penetrated to the inmost elements of society. 
Empires were first formed in the East, governments were first 



' Buddhism, Brahminism, the doctrine of Confucius, and that of Zoroaster, to- 
gether with the three monotheistic religions, Judaism, Christianity, and Moham- 
medanism, are all of Asiatic origin. 

2 Comp. Franz Bopp, Comparative Grammar of Sanscrit, Zend, Greek, Latin, 
Lithuanian, Ancient Sclavonic, Gothic, and German, Berlin, ist ed., 1833-1852 
(in German) ; T. C. Prichard, Eastern Origin of the Celtic Nations proved by a 
Comparison of their Dialects with the Sanskrit, Greek, Latin, and Teutonic 
Languages, London, 1831 ; and Etymological Enquiries in the Province of the 
Indo-Germanic Languages, with particular reference to the Mutation of Sound 
in the Sanscrit, Gree ■:, Latin, Lithuanian, and Gothic (in German), by F. A. 
Pott, Professor in the University at Halle, Lemgo, 2d ed., 1859 and onw. 



388 POLITICAL ETHICS. 

there established on a larger scale, but, with few exceptions, 
those tribes over which they hold sway live on from thou- 
sands to thousands of years in the torpor or the anarchy of des- 
potism. The arts and commerce started into existence in- 
deed, but they have been slowly perfected, in the East; many 
branches of industry are in the same condition in which they 
were a thousand years ago. There indeed many languages 
of surprising perfection and wonderful depth of thought were 
developed, when Europe spoke yet the uncouth accents of 
barbarism ; and yet, great and noble as many of the Eastern 
works are, Oriental literature is very confined if compared 
with the vast and multifarious treasures of the West. Devas- 
tating conquerors have appeared one after the other in the 
extensive regions of that continent, but they appear low, with 
hardly any exception, if compared with the powerful genius 
and mental greatness of European generals, from some of the 
first Greek commanders to the Napoleons and Wellingtons of 
our own times. Architecture and sculpture originated in the 
East, and gratefully we ought to acknowledge it, yet Europe 
perfected, purified, and refined also here. Compare the Hin- 
doo idol or Egyptian statue with the works of Phidias or Thor- 
waldsen, the mighty piles of Asiatic temples with Grecian or 
Gothic architecture, in taste and the expression of thought.* 



j 



* Some readers may not be willing to allow the justice of my remark if applied 
to Gothic architecture and that of Egypt, the whole civilization of which forms 
a connecting link between Asia and Europe, and may undoubtedly be included, 
in several points of view, in Asiatic civilization. The many and magnificent 
recent works on Egypt have revealed to us, among other treasures, a grand, 
thoughtful, and beautiful architecture. "Which of the two might be considered 
as bearing witness to a more developed state of the art, as closely connected with 
the inner man, is not to be decided in this place. In favor of whichever side 
the decision would be, it does not change our position. It is perhaps one of the 
most striking proofs of the refined intellect of the Greeks, and one closely con- 
nected with their national being, that they were the first who elevated themselves 
so high as to separate the ideas of perfection and purity of taste from those of 
mighty masses. A single column of Grecian taste is still a whole, a separate 
work of art in itself, independent and relying on its own harmony and correct- 
ness. As to Chinese art, striking and not without taste in many instances, it 
nevertheless appears to me, if I may express it thus, as refined and tasteful child- 



POLITICAL ETHICS. 389 

Three times did Asia send her swarming hordes to conquer 
the West, but the Persians, Mongols, and Arabians were re- 
pelled, although in the first case but a small country had to 
fight against the armies of a gigantic empire, and in the latter 
two the invading hosts were flushed with recent victories, 
while Europe was prostrated by disorganizing eruptions. 
Whatever view of the superiority of European civilization we 
may take, and however ready we may be to acknowledge 
those imperfections and vices which unfortunately belong 
more peculiarly to our own race, that is, the white Cau- 
casian race as developed in Europe and the Western hemi- 
sphere, it cannot be in fairness denied that mental action, 
both in variety and intensity, is infinitely greater in the pro- 
gressing European race than in any other on the globe, and 
that among those things which most characterize our race, 
political superiority stands among the first. Political power, 
political organism, state, right, law, are terms which have 
received an import, and the subjects which they designate 
have received a development, in this pre-eminent race, far 
greater in extent and superior in kind to that which any 
Asiatic, African, or aboriginal American tribe has given them. 
Meeren, who has shown, probably more clearly than any one 
before him, how much we owe to the early East, in commerce 
and so many other branches of civilization, dwells on this 
European superiority,^ and ascribes it in a great measure to 
the institution of monogamy, peculiarly European, and to 
political wisdom. But what is this wisdom ? Certainly not 
shrewdness, cunning, mere prudence and sagacity ; for Asia 
has produced innumerable characters who excelled in these 



ishness. Everything which excites the admiration of the child — contrast (in 
form and color and conception), peculiarity (and monstrosity), and gaudiness — 
seems to form the foundation of Chinese art and taste. How totally dififerent is 
the spiritualized art of the Greeks, which delights the more the more refined the 
mind is, and is the chaster and the nobler the more purely it follows out its own 
principles ! 

* Comp. his Historical Researches into the Politics, Intercourse, and Trade of 
the Principal Nations of Antiquity, translation, Oxford, 1833, 3 vols.; and Intro- 
duction to his Sketch of the Political History of Greece, translation, Oxford, 1834, 



390 



POLITICAL ETHICS. 



qualities. Indeed, if we peruse the many Asiatic works with 
which British literature has teemed for the last twenty years, 
we are struck with the fact that nearly all those men who 
most distinguished themselves in Asia by powerful actions 
were consummate masters of craft and cunning, while every 
one who has visited those parts of the East where large 
numbers of Europeans have become known is aware that the 
natives speak of the greater love of truth and mutual depend- 
ence of the Western people as a matter of course. 

The true cause seems to be that Europe first broke the un- 
happy chains with which the patriarchal principle, if applied 
to larger communities, that is, if family relations are made 
the fundamental principle of the state, fetters the people in 
stationary despotism, — a species of government to which, it 
seems to me, polygamy must almost irresistibly lead, and 
which I cannot imagine to exist long in connection with 
monogamy ; that it was in Europe that Right was first dis- 
tinctly grounded upon man's ethical character; that there, 
consequently, State and Government first became subjects of 
deep inquiry, because they were not any longer considered 
either as mere effects of force or the unalterable family rela- 
tion; and that there man first maintained liberty as a civil 
institution and became ready to bear great sacrifices for it. 
The peculiar geographical situation of Europe aided, it is 
probable, greatly in this rapid and unceasing development ; 
for although neither climate nor soil determines alone the 
character of a nation, they, and especially the means or ease 
of intercommunication afforded by the geographical con- 
figuration of extensive districts, still exercise a powerful influ- 
ence upon it, which is peculiarly strong in the earlier stages 
of civilization. But this very consideration leads us again to 
perceive the superiority of the European race. For China 
enjoys almost the same advantages with Europe and the 
United States in respect to climate, soil, and rivers ; it has 
remained severed by its geographical position from many of 
those disturbances which have influenced and afflicted other 
Asiatic nations, — circumstances which close observers have 



i 



POLITICAL ETHICS. 



391 



pointed out as prominent causes of the superiority of Chinese 
civihzation over that of all the rest of Asia, Persia not ex- 
cepted.^ Yet if we compare that most eastern Asiatic nation 



* The following is an interesting extract from the work of Mr. Davis on 
China, already quoted. In the introduction, pp. 7 and 8, he says, — 

" The early advancement of China, in the general history of the globe, may 
likewise be accounted for, in some measure, by natural and physical causes, and 
by the position of the whole of that vast country (with a very trivial exception) 
within the temperate zone. On this point the author will repeat some observa- 
tions which he long since made in another place : that 'an attentive survey of 
the tropical regions of the earth, where food is produced in the greatest abun- 
dance, will seem to justify the conclusion that extreme fertility, or power of pro- 
duction, has been rather unfavorable to the progress of the human race ; or, at 
least, that the industry and advancement of nations have appeared in some 
measure to depend on a certain proportion between their necessities and their 
natural resources. Man is by nature an indolent animal, and without the stimu- 
lant of necessity will, in the first instance, get on as well as he can with the pro- 
vision that nature has made for him. In the warm and fertile regions of the 
tropics, or rather the equinoctial, where lodging and clothing, the two necessary 
things after food, are rendered almost superfluous by the climate, and where 
food itself is produced with very little exertion,* we find how small a progress 
has in most instances been made ; while, on the other hand, the whole of 
Europe, and by far the greater part of China, are situated beyond the northern 
tropic. If, again, we go farther north, to those arctic regions where man exists 
in a very miserable state, we shall find that there he has no materials to work 
upon. Nature is such a niggard in the returns which she makes to labor, that 
industry is discouraged 2SLdi frozen, as it were, in the outset. In other words, the 
proportion is destroyed ; the equinoctial regions are too spontaneously genial 
and fertile ; the arctic too unfriendly barren ; and on this account it would seem 
that industry, wealth, and civilization have been principally confined to the tem- 
perate zone, where there is at once necessity to excite labor and production to 
recompense it ! There are, no doubt, other important circumstances, besides 
geographical situation, which influence the advancement of nations ; but this at 
least is too considerable an ingredient to be left out of the calculation.' " 

It will be recollected that, on various occasions in the first part of this work, 
much importance has been attributed to two principles of man's social develop- 
ment, namely, that everything which characterizes man as such must first be 
developed, except his physical nature, and that the first starting-point of every- 
thing indispensably necessary to man's social development has been indissolubly 
connected by the Creator with the material world. We observed it with regard 



* " See the observations of Humboldt on the use of the banana in New Spain." Every one 
who has been in the West Indies can testify to the justness of these remarks. 



392 POLITICAL ETHICS. 

with the western European race, in intellectual and political 
civilization, it will not be difficult to form a just decision. 



to the family and other necessary institutions. In the present case the principle 
is manifest. Man ought to labor; yet would he have labored from the begin- 
ning? The most genial regions are the earliest in the advance of civilization, 
especially Hindostan. Its luxuriance encouraged the first starting; but the lux- 
uriance is too abundant ; man relaxed under it ; only the first effort was excited ; 
energy showed itself farther north, in Egypt, Greece, Rome. At later periods 
man found assistance in a thousand discoveries, which enabled him to carry 
civilization through a long winter, both in a physical and mental point of view. 
Civilization extended farther and farther north, and a country like Canada, which 
would never have induced man to start in the path of industry, may still become 
a flourishing one. The general remarks of Mr. Davis are undoubtedly true. If 
the negroes of Hayti could not contrive to live by paying a trifling attention to 
a few banana-trees, they would not have allowed all the sugar-fields to go to ruin. 
Hence likewise the evil consequences which the introduction of the potato into 
some countries has produced, although its good effects, upon the whole, in ward- 
ing oft" famine, formerly so frequent, will be denied by no one. But it is cer- 
tainly true that the potato has frequently operated in the northern regions as the 
banana has in the tropical. It made the bare subsistence of a rapidly-increasing 
population possible, and thereby lowered the standard of comfort, industry, and, 
consequently, of energy and civilization in general. 

A geographical consideration of importance respecting European civilization 
is the much greater extent of sea-coast in proportion to the area of Europe, com- 
pared with any other of the four large divisions of the globe. Europe, as Alexan- 
der Humboldt justly expresses it, is the most articulated of all parts of the world. 
The sea-coast, however, is favorable to civilization, and, in general, to the spirit 
of liberty, were it even for no other reason than that the sea, erroneously called 
by the ancient poet Dissociabilis Oceanus, is the great means of communication, 
and that seafaring is favorable to manliness and boldness. Prescott, in speaking 
of the republican spirit of the Aragonese, makes some pertinent remarks on this 
subject in his History of Ferdinand and Isabella, vol. i. p. 59, et seq. ; and the 
observations, somewhere in Heeren's works, on the indented shores of Greece, 
apply more or less to Europe in general. Mr. Julius, in his late work, " The 
Moral Condition of North America," in German, 2 vols., Hamburg, 1839, has the 
following passage (vol, i. p. 426) : " If we take the area of Europe as the unit, 
we find that in the almost unbroken triangle of Africa, three times as large as 
Europe, the width is to the length as one to one, so that the triangle becomes 
equilateral. The area of Asia is more than four times that of Europe, and her 
width to the length of the circumference is as one to four : in America, almost 
four times as large as Europe, the proportion of the width to the length of its 
circumference is as one to five, and in Europe as one to six. Africa has a sea 
coast of about 3800 German miles ; Europe, one-third as large, 5400 ; Asia, 
more than four times as large, 7000 German miles ; and America, nearly four 



POLITICAL ETHICS. 



393 



This Western race, which is distinguished by an onward 
movement from the times of its first dawn of civilization, is at 
present in one of those periods which are peculiarly stirring, 
similar, perhaps, in its character of universal and thrilling 
activity, to that of the Reformation, preceded as it was by the 
exciting period of maritime discoveries. We are, indeed, 
ever apt to consider objects near us of peculiar magnitude ; 
but the calmest mind, the most comprehensive intellect 
familiar with all the most active periods of history, will prob- 
ably not deny that our period is a peculiarly active one, and 
one of those epochs in which man seems to employ all his 
energy in realizing some important idea. A time when in 
the East the Turkish empire is busily engaged in severing 
itself from Asiatic civilization and joining European, and in 
the West a railroad is building to effect that for which Colum- 
bus sought so long and ardently in vain, and when the two 
poles of this conductor from the East to the West, from the 
Atlantic into the Pacific, will be brought in contact with other 
hemispheres by the busy steamboat, braving wind and cur 
rent, — such a period seems not to be a common one. 

Future ages, perhaps, will look upon our period as a pre- 
eminently political one ; as that period in which governments 
from cabinet governments became national and popular gov- 
ernments, superseding the period of court politics, when, as 
an eminent continental writer expressed it, "the court law 
came to be made the common law;"^ as the period in which 
broad ideas of substantial civil liberty were more clearly de- 
fined and more widely secured for a large number of nations; 
in which the primary relation of the citizen to the state be- 
came a distinct subject of intense political action ; as the 
age of constitutions. If so, it behoves every one to perform 
conscientiously his task in this animated time. But, whether 
it be so or not, certain it is that many entirely new agents of 



times as large as Europe, has a sea-coast in length between Europe and Asia. 
Or, if we consider for a moment the area of all equal, the lengths of sea coast of 
Africa, America, Asia, and Europe are in the proportion of 38, 48, 51, and 162." 
'Justus Moeser, Osnabriick. Gesch., i. part i. 23. 



394 



POLITICAL ETHICS, 



human society have come into play and act with an intensity 
which gives a far greater importance to everything connected 
with politics, for weal if we do our duty, for woe if we neglect 
it, than at any previous period, except that of antiquity. 

IV. A last and, in my opinion, an important reason may be 
urged, why we should take the ethical elements of politics 
into serious consideration just at the present period. Among 
the most prominent characteristics of our times seem to be a 
general exertion to diffuse knowledge, a successful tendency 
to popularize governments, a most extensive industrial act- 
ivity, arising in fact out of the diffusion of knowledge, or, as 
it has previously been called, the union of science and indus- 
try, and the peculiar attention which for the last seventy or 
eighty years has been paid by many gifted minds to the pro- 
ductive energies of nations and all the laws which regulate 
the exchange of labor and produce. Since Locke wrote his 
treatises' on government, few distinguished men in England 
or America have written exclusively on the principles of poli- 
tics or the first elements of the state ; and ever since Adam 
Smith, the attention of political writers has been directed 
almost wholly to the investigation of those subjects which 
are more or less closely connected with production, exchange, 
and consumption, commerce, industry, population, and pau- 
perism, — in short, to subjects of political economy. These 
inquiries into the material interests of human society are of 
the greatest importance, and it would show great ignorance 
indeed should any one attempt to deny that they have exer- 
cised a powerful influence upon the whole European race and 
the peaceful intercourse among the states into which it is 
divided. But it will always happen, when some new ideas of 
vast importance break through previous darkness, and men 
strive to realize them in practical life on a large scale, after 



* In Heeren's Historical Treatises, trans'ation, Oxford, 1836, the/e is an in- 
teresting article on the Rise, Progress, and Practical Influence of Political Theo- 
ries, of which I would recommend the first part, which is historical, to the 
perusal of my reader. The latter (political) part seems to me indifferent. 



POLITICAL ETHICS. 395 

having been conceived and cultivated by gifted individuals in 
the necessary historical progress of civilization, that for a 
time they absorb the human mind and general mental activity, 
to the exclusion of others of equal or greater importance. 
We thus find that zealous inquiries into the material interests 
of the masses have colored investigations which belong to 
other provinces, and that self-interest, not indeed unfrequently 
qualified as " enlightened self-interest," has been assumed as 
the sole principle of all questions relating to man's political 
existence ; that his activity, ingenuity, and industry in the 
material world have been assumed as the sole points in ques- 
tion with reference to our social state. Were we to study the 
causes of this phenomenon, we should be obliged to go as 
far back as to the period when governments and in fact the 
various tribes became gradually nationalized, to the discovery 
of America and the Reformation, which, by the secularization 
of ecclesiastic property and the new turn which it gave to the 
European mind in general, imparted to industry also a pecu- 
liar impulse.^ This cannot be done here ; but it will appear 
evident that unless we again direct our attention, manfully 
and steadily, to the ethical elements of the state, we shall 
expose society to the greatest dangers in many of its most 
sacred interests. To contribute my humble share to this 
noble object I have undertaken this work. I am not writing 
a book of political casuistry. The casuist may settle a thou- 
sand cases of conflict, and the next complex one offered by 
practical life may be as perplexing as the first. Nor have, in 
all probability, any works of casuistry, however ingenious and 
dialectic they may be, essentially contributed to guide con- 
sciences in the path of duty, while, as we all know, not a few 
have, by their very ingenuity, blunted the moral edge, instead 
of sharpening it. If I succeed in disseminating a few salutary 
principles, in pointing out some dangers, in aiding to give 
moral vigor to political existence, and, above all, in inspiring 



* Political Consequences of the Reformation, by Heeren, u. s. The work of 
Adolphe Blauqui, Histoire de I'Economie Politique en Europe, Paris, 183^ 
contains many valuable facts. 



396 POLITICAL ETHICS. 

some hearts with a due appreciation of the task we have to 
perform as citizens and as members of our race, with a genuine 
love of liberty and a conscientious desire to maintain it; in 
convincing any that the prize for which we ought to strive, 
according to our political nature, is a most noble one ; in 
arousing a few from political apathy, so dangerous to every 
society, and in moderating others, who forget in their ardor 
that duties are the necessary concomitants of rights ; if, in 
short, I succeed in impressing some with the sacredness of 
their political relations, or indeed only in inciting renewed 
attention to these grave subjects and in warming some hearts 
with true patriotism, I shall consider my object fully attained, 
and believe that my life has not been spent entirely in vain, in 
promoting the great objects of that period in which my lot 
has been cast. 

V. Politics, in the course of this work, has been compared 
to architecture, with reference to the necessary attention which 
we must pay to the materials at our disposal, as well as to the 
object which we have in view. But here the comparison stops, 
for the component parts of the state are living beings, indi- 
vidual men ; and whatever well-intentioned laws or institutions 
we may establish, they will either be wholly inoperative or be 
perverted to a contrary action from that for which they were 
intended, if they do not find a corresponding moral sense in 
the greater number of the people. Laws may do much to 
repress evil, vice, or crime : indeed, the mere fact that these 
are repressed or punished, as soon as known, is not only an 
effect of the moral state of society, but confirms and diffuses 
it. Yet the operation of the laws themselves must always 
first depend upon a corresponding sense of duty and virtue 
in the people. Dishonesty may be rendered punishable, and 
will be punished so long as a sense of honesty is diffused in 
the community; but this honesty itself cannot be enacted. 
We find, therefore, in many periods of general degeneracy 
the greatest number of those laws which strive to enforce the 
primary i^irtues, upon which men have at all times acknowl- 



POLITICAL ETHICS. 397 

edged the state essentially to rest ; but those laws alone have 
never been able to arrest the downward course of depravity 
when once it had really become general. The decline of 
Greece and Rome exemplifies both these positions. 

No individual in China can hold a magistracy in his native 
province, and the residence of officers is periodically changed, 
to prevent the growing up of connections between them and 
the people, of bribery and insecurity of government ; and, 
for a similar reason, the Spanish judge in the colonies — I do 
not know what law exists respecting this point in Spain itself 
— is prohibited from marrying in the place of his appoint- 
ment; yet the government is perhaps nowhere less powerful 
and more insecure, nor are bribes more the order of the day, 
than in the first country, nor is the administration of justice 
more corrupt in any country than in several colonies of the 
latter. If jury, judge, and witness falter in their duty, no 
Russell can be saved. This is a truth so simple that we 
should hardly expect it ever to have escaped the mind of 
legislators ; yet all codes of former times are filled with laws 
which proclaim what cannot be ordained, or extend over so 
purely private matters as to resist all demands or ordinances 
from without. There are laws in those codes which ordain 
that the subject shall love the king; and the Spanish laws 
prohibit "crying and other immoderate grief for the defunct,"' 
while they decree dreadful punishments for " erring, and not 
believing what the holy church holds and teaches." 

VI. Nothing would be farther from me than the intention 
of conveying an idea that wise laws are unimportant. They 
are all-important : they support, aid, check, elevate, cultivate, 
and perpetuate. Good laws are the best legacy which one 
generation can leave to another ; the greatest blessing of a 
community is a long-continued series of wise and sound laws. 
We have but to look at such a law as enacts a general school 



« " Ninguno haga llantos, ni otros duelos inmoderados por los defuntos, es- 
pecialmente desfigurando y rasgando la cara," etc. Extracto de la Novfsima 
Recopilacion de las Leyes de Espafia, vol. vii., Madrid, 1815, lib. i. titulo i, 9. 



398 POLITICAL ETHICS. 

system : still, the first fulcrum on which they lean, so that 
they can operate, is the sound state of the community — a fact 
which the ancients well knew and repeatedly mentioned. 
Without general morality, that is, good customs, there can 
be no sound commonwealth ; nor can there be general with- 
out private morality ; but private morality is best preserved 
where it has grown into good custom. " Custom," says 
Bacon, " is the chief magistrate of man's life ; men should, 
therefore, endeavor by all means to obtain good customs." 

It is evident, therefore, that in this point of view every 
virtuous disposition, morality in all its manifestations, is of 
elementary importance for the well-being of the state. But 
there are certain virtues, as well as vices, which are of pecu- 
liar importance to the state, because they either prompt more 
frequently to public acts, or come more often than others into 
play in political life. Of these I propose to say a few words 
before I discuss some of the most important situations in 
which the citizen is called upon conscientiously to act, although 
not guided by any law. 

Before I close this section I would refer once more to the 
remarks which were made in the first part^ on the fact that 
private virtues may exist without a sufficient attention to 
public ones. Indeed, it has not been maintained, in the above 
remarks, that private morality alone, be it ever so extensive, 
insures public welfare. The government of a people may for 
a long time have so effectually acted upon the principle of 
interference, and may have smothered so entirely all public 
spirit, public interest, and public activity in the people, that 
the state may sink despite all morality, and when a time 
of danger arrives the state may break down like an under- 
mined fabric. I do not believe that any one will charge the 
Prussian people, as they were before the battle at Jena, with 
general depravity. Yet the state crumbled rapidly into pieces 
after that battle had been lost — more easily than any state 
ever could have done in which the people at large acted vigor- 



* Chapter y. 



POLITICAL ETHICS. 



399 



ously with the government, whatever the final issue of the 
war might be. This same epoch, however, furnishes us Hke- 
wise with an example how vigorous a support politics derives 
from the good morals of a people, and how rapid may be the 
growth of public spirit, if sown upon them. Had the Prus- 
sians been a degenerate race, soiled with vice, meanness, and 
crime, would they have gathered national strength even under 
the iron dominion of a conqueror, which weighed most heavily 
upon them, and would they have risen, small and shorn as 
their country and means were, so successfully against so power- 
ful a foe? The rise of Prussia in i8 13, with the measures 
which prepared it, and the most strenuous national exertion 
to expel the conquerors, shortly after that country had been 
dismembered, forms an instance of great interest in the sphere 
of political ethics. 

Private morality in fi'ee countries, however, will go very far 
to insure public success : yet even here we must not forget 
that moral rectitude alone cannot cause any state to flourish; 
good counsel is likewise necessary. Laws must not only be 
made by well-meaning people, but they must be wise laws ; 
and while the moral tone of society is of primary importance 
in free countries, prudence and sound counsel in the statesman 
or law-maker are not less so. For wise laws must be made 
with reference to the citizens themselves, the period they live 
in, and the neighbors who surround them. 

On the other hand, there have been distinguished writers 
on subjects of politics, who seem to have considered good 
laws and wise institutions as the first foundation of political 
success, and as those agents by which general good conduct 
is first engendered, or which have secured success to many 
states, although private virtue existed only in a very limited 
extent. When power was mistaken for government, and gov- 
ernment for state, it was but natural that increase of power, 
brilliant external success, conquest, or other aggrandizement 
should at times have been taken as a sufficient index of po- 
litical success ; yet even then it was frequently not considered 
whether degradation and ruin followed this very success. Or, 



400 POLITICAL ETHICS. 

the standard of judgment has been a certain preconceived 
index of good government, for instance a certain division of 
power. Nor has sufficient attention been paid to the fact that 
frequently the good effect of former better periods is felt in 
later worse ones, yet only for a time, because the degenerate 
state of the latter is unable to perpetuate them. 

Hume seems to me to have fallen into this latter error when 
he says, " The ages of the greatest public spirit are not always 
most eminent for private virtue. Good laws may beget order 
and moderation in the government, where the manners and 
customs have instilled little humanity or justice into the tem- 
pers of men. The most illustrious period of the Roman history 
considered in a political view, is that between the beginning 
of the first and end of the last Punic war; the due balance 
between the nobility and people being then fixed by the con- 
tests of the tribunes, and not being yet lost by the extent of 
conquests. Yet at this very time the horrid practice of poi- 
soning was so common that during part of the season a 
praetor punished capitally for this crime above three thousand 
persons in a part of Italy." ' I think that if the history of any 
state teaches in bold examples the political value of virtue 
and the political misery following upon depravity, in short, 
the almost constant reciprocal action of private and public 
virtue in free states, it is the history of Rome. Take those 
virtues which form the common stock of man's morality — 
justice, honesty, and a pure family life — and say whether a 
state can lastingly succeed without them ; whether they form 
not the very sap which gives soundness to the whole body 
politic. One who knew well the operation and effect of many 
political elements, both by his station in life and because he 
lived in a period which followed a time of depravity in the 
upper classes equalled only by the vices of a very few other 
corrupt periods, — Napoleon, — said, " Public morals are the 



» Hume's Essay, that Politics may be reduced to a Science — Essay iii. vol. 
iii. of his Philosophical Works, Edinburgh, 1826. [Two thousand is the num- 
ber given by Livy, xxxiv. 41, on the authority of Valerius Antias, whom he him- 
self distrusts : comp. iii. 8.] 



POLITICAL ETHICS. 401 

natural complement of all laws ; they of themselves form an 
entire code." ^ 

VII. Of all the virtues peculiarly important in politics, the 
chief place must be assigned to justice and fortitude or per- 
severance ; for honesty and moderation, without which no 
state indeed can last or flourish, may be comprised within the 
first, if we take it in its widest sense; yet they deserve par- 
ticular mention. Justice and Fortitude may well be called 
the two elementary virtues of every citizen, no less than of 
the statesman in particular. 

Justice — if we designate by this sacred word that virtue 
which is the constant will, desire, and readiness faithfully to 
give every one his due, and if we understand by due not 
merely that to which every one has a right by the positive 
and enacted laws of the state, but that which is his as man, 
as individual, as moral being, and as our neighbor — is that 
virtue which is embodied in the great practical moral law 
that we should do even so to others as we would that they 
should do to us. Justice was early acknowledged to be 
the supreme virtue, and often called by the ancients the 
only virtue, including all others ; ^ it is that virtue or ethic 
disposition which prompts man to acknowledge others as 
his equals, and thus becomes, as we have seen, the very 
foundation of the state, and remains at once its cement and 



^ Las Cases, Memorial de Sainte-Heldne, vol. vii. p. 123, Paris, 1824. 

2 'Ev Sk diKaicavvTi avTCkriSdrjv Ttda' apsTTj 'an. — " Justice comprises all virtue." 
(Theognis of Megara, one of the Gnomic poets.) " Justitia, cui sunt adjunctae 
pietas, bonitas, liberalitas, benignitas, comitas, quseque sunt generis ejusdem." 
(Cic, de Fin.,v. 23, 65.) Thus 6lKaiog, "just," is used in the New Testament to 
denote the highest degree of virtue and purity, and the word righteous (from 
Right), by which the original diKaiog is rendered in English, with its comprehen- 
sive meaning, according to which " it includes all we call justice, honesty, and 
virtue, with holy affections, in short is true religion," points to the same connec- 
tion of ideas, and in the German Bible the simplie word gerecht, that is, just, is 
used where in English righteous stands. 

The Hindoo Ordinances of Menu say, " The only friend who follows men 
even after death is justice : all others are extinct with the body." Translation 
by Sir William Jones, London, 1799, vol. iii p. 276. 

26 



402 



POLITICAL ETHICS, 



energy ; that virtue which above all others establishes confi- 
dence, peace, and righteousness among men, individually and 
collectively, as states or nations, and comprehends fairness, 
equity, and even clemency. For if in matters of law we dis- 
tinguish the latter from justice, if we establish courts of equity 
in contradistinction to courts of law, or give to the chief 
magistrate the privilege of tempering justice with mercy, we 
mean in this case by justice the awarding of every man's due 
according to the established laws of the land, which the jural 
character of the state requires to be the rules by which the 
actions of its members should be judged. But as we are con- 
scious that laws cannot be so perfectly framed as to meet 
every possible complex case, and that, framed in human lan- 
guage as they must be, their exact application must some- 
times defeat their own ultimate end, namely, true justice, we 
vest somewhere the power to determine causes '* in which 
reason and justice require that the rigorous application of the 
rules of common law should be mitigated," or to release the 
offender from punishment in cases in which the law, accord- 
ing to all the circumstances, operates harshly. Upon this 
ground alone can the privilege of pardoning be maintained 
with any reasonableness, for it cannot have been bestowed for 
the purpose of screening real guilt, according to caprice, 
weakness, or partiality. It is therefore essential justice only 
which in these cases is made to supersede apparent justice. 
There may be cases indeed, by way of exception, in which 
parr'on is granted wholly from generosity or on prudential 
grounds ; for instance, when an offence against the chief 
magistrate personally is remitted. 

VIII. That justice, if it means the unswerving and incor- 
ruptible meting out of every man's due, the protection of 
right, is the most indispensable virtue with regard to the 
state as the strictly jural society, and is in fact its very essence, 
has been sufficiently dwelt upon in former chapters, where 
in fact one of my chief endeavors has been to present it in 
as strong a light as possible. " There is but one means to 



i^OLITICAL ETHICS. 



403 



render a government firm ; this is Justice," said Carnot, when 
the question was debated whether the imperial crown should 
be offered to Bonaparte in order to render the government 
stable. And Timur, the mighty Tartar, even he said, when 
asked for advice by a fellow-emperor, " Sovereignty (the prin- 
cipate) is like a tent, the poles of which should be justice, the 
ropes equity, and the pins philanthropy ; in order that it may 
stand firm against the blasts of adversity." ' A great truth in 
the peculiar Tartar dress of the roving nomad. 

But justice is not only, thus applied to positive laws, the 
main stay of the state, it is of like importance in all possible 
relations in which the citizens can be placed, individually and 
collectively. Nothing, as every reader well knows, gives to 
a man so stanch and solid a character as the conviction of 
the community that " he wishes to do nothing but what is 
right ;" nor does anything give so moral a tone and conse- 
quently so vigorous a support to international transactions as 
the knowledge that one of the parties " demands nothing but 
what is right, and will submit to nothing that is wrong." 
*' Reputation is great power," as Bolingbroke said,^ perhaps 
the best authority, because he found the truth by experiencing 
the reverse from contrary causes : yet one of the chief ingre- 
dients of a well-established reputation, both for individuals 
and for states, is habitual, plain, thorough justice. Civil and 
social transactions and intercourse must, in a great many in- 
stances, ultimately depend upon good faith ; that is, essential 
justice, in its most comprehensive sense. Laws may be 
wrested, contracts evaded, the most solemn terms may be 
broken, if we abandon justice and have a mind to interpret 
our engagements or the ethic demands of duty themselves in 
bad faith. That community in which injustice and bad faith 
are habitual cannot possibly support civil liberty. This is so 
true and evident that we may well dispense with any farther 



» Stewart's Translation of the Memoirs of Timur, published by the Oriental 
Translation Fund, p. 56. 

• Bolingbroke to Windham, Oct. 13, 1737, — Correspondence, vol. iii. p. 494. 



|04 



POLITICAL ETHICS. 



discussion of the subject ; but it will be necessary to inquire 
into some cases in which we have to guard ourselves especially 
against injustice and an abandonment of the primary principle 
of right and equity. 

I believe the most important of these cases are those in 
which we enjoy superior power, or where no authority above 
us can make us responsible for our acts, and those in which 
passion or eagerness to obtain an advantage or defend rights 
blinds us. I have spoken already of the love of power and 
the universal feeling of offence at opposition, however loyal. 
Men, therefore, who enjoy power, of whatever sort, ought 
never to forget that they are magistrates, which means agents, 
servants of the state ; this superior power which they enjoy 
over their equals has the sense and meaning only that they 
shall use It to serve the state. For what other reason should 
they be singled out from the mass ? The object as well as 
foundation of the state, however, is justice. But when we 
have power for which we are not, strictly speaking, respon- 
sible, or not at all so, we are the more bound to adhere to the 
only law that remains, the moral obligation which demands 
justice. 

It is well known that it is never an easy matter to obtam 
the satisfaction of large claims, however just, from those who 
have the power to refuse it or not, as they please ; from legis- 
lative bodies not more easy than from princes. Ferdinand 
the CathoHc declined paying what was due to Columbus, 
according to solemn agreement, because the portion of the 
revenue due to the navigator was large, since the revenues 
themselves had become large; and some extensive claims 
upon the United States, due since the Revolution, received 
but late and tardy justice. How unjust Rome showed herself 
to her dependents ! A prince, knowing that a brilliant act 
of justice and disinterestedness will redound to his personal 
honor, finds, not unfrequently, a motive to do right in this 
adventitious circumstance ; while for the single member of an 
assembly no such personal motive exists. He is therefore 
still more bound on ethic grounds to obey the law of justice, 



POLITICAL ETHICS. 405 

and his doing right is the more disinterested. Let, however, 
all citizens rest assured that, whatever the momentary disad- 
vantage may appear to be, there is happily nothing which is 
even on the ground of mere prudence so advisable as steady 
justice and fairness in all matters. Nothing creates such con- 
fidence and imparts such vigor to all parts of the state as 
doing right. ** Oh qu'il est dangereux de mal faire pour en 
esperer du bien," wrote Elizabeth to Henry IV. of France.^ 
By nothing, it is well known, has the Prussian government 
succeeded sooner in attaching the new or reconquered prov- 
inces to herself than by her scrupulous fulfilment of even very 
onerous engagements made by the preceding and hostile gov- 
ernments. Credit, that great agent of governments as well as 
private transactions in modern times, and which, however 
frequently and greatly abused, must nevertheless be considered 
as one of the most striking effects of civilization in the Eu- 
ropean race, on what is it founded, if not on the two elements 
of capability and of justice ? Pecuniary capability alone can 
never create it without corresponding confidence in the justice 
of the borrower. 

Yet, though none of these considerations existed, justice has 
its own independent worth, and the most fundamental maxim 
of all politics as well as of civil liberty is the well-known 
adage, " Fiat justitia et pereat mundus." Aristides left a great 
national legacy to his fellow-citizens by his name of the Just, 
and by his opinion, repeated from mouth to mouth, when 
Themistocles, by their order, had communicated to him his 
secret plan of burning the confederate fleet, " that the enter- 
prise which Themistocles proposed was indeed the most ad- 
vantageous in the world, but at the same time very unjust ;" " 
whereupon the Athenians commanded him to lay aside all 
thoughts of it. As justice is the great support of the state, so 
is injustice its ruin; not only corrupt administration of justice. 



* Raumer, History of the Sixteenth and Seventeenth Centuries, illustrated by 
Original Documents, translated from the German, London, 1835, vol. J- P- S^S- Not 
to be confounded with Raumer's History of Europe, likewise quoted in this work. 

» Plutarch, Themistocles. 



4o6 POLITICAL ETHICS, 

but every act of undeserved partiality or favoritism, of honors 
bestowed unworthily or merits requited with evil, spreads in 
the state like a poisonous weed and extends its mischief 
incalculably farther than merely to the individual or his 
family. 

Justice, thus vitally important in all domestic political 
affairs, is not less so in international. Treaties rest essentially 
on good faith; for there is no superior power to adjudge be- 
tween the parties and to coerce into obedience. As inter- 
national treaties generally cover a large sphere, it is natural 
that human words should, in most cases, be found not suffi- 
ciently minute to exclude all faithless interpretation. There 
is then no authority which can direct us to do right, except 
Justice herself in our hearts ; while we may confidently rely 
upon the fact that nothing gives so much dignity to a nation, 
and consequently so much facilitates all her national inter- 
course, secures so great national advantages, and extends 
benefit to all her citizens abroad, for whatever purpose they 
may travel, in pursuit of wealth, knowledge, or pleasure, as 
habitual and traditional justice in international affairs. The 
international transactions of Louis XIV. and the deplorable 
effects to which the spirit led with which they were carried 
on, afford an impressive instance of bad faith and injustice; 
the history of Isabella the Catholic furnishes a striking instance 
of the becalming and resuscitating power of habitual justice 
and consequent confidence of the people; and that of England, 
the most instructive illustration of the immense power which 
results from a faithful discharge of the engagements made by 
government, and a universal belief in the justice of the courts 
of law. 

IX. Justice, which demands that we should see and judge 
matteis not only from our point of view, but also from that 
of others, perhaps of our adversaries or enemies, is on this 
ground also the most difficult virtue, as it is the highest. No 
phenomenon in the moral world, or indeed in the political, 
is more common than the adoption of the standard of that 



POLITICAL ETHICS. 407 

circle in which we move, a specific standard of feeling, taste, 
delicacy, tenderness, even of fairness, justice, or candor, honor, 
and right, and a disregard of that of others. But justice on 
general grounds, as well as in political spheres in particular, 
demands that we should divest ourselves as much as possible 
of these distorting views, which must prevent us from free 
and correct action. There is nothing so dangerous in politics 
as coteries, on account of this standard of their own, and their 
consequent injustice to others. The history of most revolu- 
tions proves their danger. There is hardly ever a body of 
men within a nation who know so little of it as a court, unless 
the monarch be of a peculiarly sagacious and penetrating or 
free and elevated mind, gifted with the rare power of a grasp- 
ing combination and the genius of divination, animated as 
this must be by original sympathy with the people. Parties, 
and especially party coteries, have frequently the same effect. 

X. Nothing, however, is so apt to prevent justice in us as 
passion, which is proverbially blind. As to party passion, I 
shall recur to the subject when I shall treat of Parties. Here 
may be mentioned only that there are many persons " who 
have no action except they are animated by some passion, 
which makes them like incense, giving its perfume only when 
on fire," a " constitution dangerous to all persons, but especi- 
ally to kings, who, as well as every one else, must act by 
reason," as Richelieu adds in his testament. These persons 
are highly dangerous in free countries, because they act not 
only blindly, and " if correctly but by chance" and by mere 
impulses, which rapidly vanish ; but they communicate their 
excitement to others, and prevent truth and justice in a larger 
circle. Yet these unbridled and unmanly characters are not 
the only ones who suffer from passion ; nobler men have to 
shun it likewise. A large number of those men who have 
performed the greatest works have done so partly in conse- 
quence of having been endowed with a peculiarly sensitive 
and excitable organization. Without it, men are frequently 
incapable of that impulse and enthusiasm which must rouse 



4o8 POLITICAL ETHICS. 

the mind and inspire it for great and morally bold tasks ; 
without it they will not dare or undertake those things which 
promise neither reward nor profit, and to which strict duty 
does not bind them. But this very sensitiveness likewise 
exposes such characters to excited feelings more than the 
duller part of the community, and consequently, when excited, 
to unjust and dangerous actions. Let them therefore learn 
in season to bridle themselves and submit to calm judgment, 
without extinguishing the ardor of their nature ; for they are 
necessary ingredients in a good community. 

In whatever light, then, we may view justice, privately^ 
publicly, or internationally, it is all-important. It is the foun- 
dation of character, the basis of power, the aegis of liberty, the 
sole support of self-respect ; and a great secret of the art of 
ruling, which many indeed believed to consist in a continued 
series of coups d'etat, is contained, for republics as well as 
for monarchies, at home and abroad, in the two brief words. 
Be Just. 

XI. That we should be just in its truest and widest sense, 
in all our dealings, opinions, and judgments, strictly political 
or not, leads us at once to the consideration of an important 
question : Is a citizen in conscience allowed to do all that his 
laws permit ? Not a few think so, although in many cases 
the theory of the persons is worse than their actions really 
prove them to be. That we have not to inquire whether a 
citizen may or may not take all the advantage which, in 
overreaching the laws by using their letter contrary to their 
evident spirit, he may derive from cunning or fraud, is too 
evident. The fair and simple question is. May you do all the 
laws positively allow you to do, and all that they do not pro- 
hibit ? What has been called by some abiding by the laws 
of their country is nothing but a pretext for actions of whose 
depravity they are conscious. From the whole view which 
has been taken of the state in previous chapters, it appears 
clearly that those who pretend to consider themselves justified 
in everything which the law does not prohibit are in a great 



POLITICAL ETHICS. 



409 



error.* The state does not supersede morality or my own 
conscience, which it evidently would if its laws were my 
whole code. We must never forget that laws are always 
addressed to men whose common sense and moral character 
are presupposed : otherwise it would be impossible to draw up 
any laws, and useless to enact them. The more legitimate 
the action of the state, the more it confines itself to those sub- 
jects which necessarily require general interference or action, 
and the more it leaves individual action to itself. There are 
thousands of relations of the highest importance which the 
state nevertheless cannot or will not touch, in which we must 
act for ourselves. The state remains, as has so frequently 
been stated, a jural society; but there are even jural relations 
which it is impossible for the state, acting as it does by laws, 
that is, general rules, to treat with that minuteness or delicacy 
which nevertheless their essential character requires. We 
have seen that the individual is by no means absorbed by the 
state; it does not pretend to act, feel, think for us; but 
this would undoubtedly be the case if we attached a moral 
meaning to our actions only according to the positive laws of 
the state. If I am absolutely allowed to do all that the laws 
of my country allow, and I thus make the state my con- 
science, a necessary corollary is that I am also absolutely 
bound to do all that they demand. How then with nefarious 
laws ? Walter Scott tells us that an earl Patrick on the Zet- 
land Islands made laws against anybody's helping vessels 



* * The error, then, is : 

1 . That we do not acknowledge that there may be bad and even wicked laws. 

2. That we reason as if the state with its laws were made to be a substitute for 
conscience and morality, while in truth it is but one of the edifices built upon 
them. 

Now let a man adopt the rule that he is permitted to do all that the laws 
do not prohibit, and then add Blackstone's theory that the punishment is an 
equivalent for the offence, which therefore we may commit provided we are 
willing to abide the consequences, and it is seen at once that we arrive at this 
conclusion : 

You can do anything you choose, provided you can prevent it from being dis- 
covered, or, if it be discovered, take the consequences — a diabolical rule, fit for 
a set of pirates, but not for honest m*n. 



410 rOLIlICAL ETHICS. 

likely to be wrecked on the breakers, for no other reason than 
that iniquitous desire which we find to a very late period in 
most inhabitants of remote and dangerous coasts.^ The Aus- 
trian government permitted to a recent date the reprint of 
any German work although unauthorized by the author or 
owner. Thus piratical cheap editions were imported from the 
imperial dominions into the other parts of Germany, to the 
injury, and sometimes the ruin, of the lawful owners of the 
respective works. Was it right to make use of this law of 
Austria ? Charles Gustavus of Sweden, when he was in a 
highly critical situation in Poland, in the year 1656, ordered 
that every Polish nobleman of his party who should kill 
one on the Polish side should have half of his fortune ; every 
peasant who should do the same should be emancipated and 
have the use of the slain nobleman's estate for six years. 
Was an individual, even though he sided conscientiously 
with the monarch, therefore at liberty to commit murder ? 

There is no father who would assert that he feels at liberty 
to do in his family all that the laws allow or cannot reach ; 
and why is the moral obligation in the family greater than 
that towards fellow-citizens ? Most assuredly God will not 
judge men by the civil code, or the common law of England, 
or the code of France, but by that code from which all codes 
originally flow, and which is *' the law written in their hearts," 
their conscience. If this first of all codes is disregarded, its 
emanations, the positive laws, must in every society soon lose 



1 



« The Pirate. — Until within recent times " a blessed stranding" was prayed for 
in some churches on the island of Riigen in the Baltic. The people compared 
it to the innocent prayer for " daily bread" of a physician, and interpreted theif 
own prayer as a request that, if there was any wreck according to the will of God, 
much of it might be saved and come into their hands. Nothing, I believe, proves 
more strikingly how society alone humanizes man than the fact that in all 
countries, among inhabitants of the sea-coast, remote from society and near 
rocks and breakers, are found exceedingly dangerous people, who decoy vessels 
or destroy the crew, etc., and the remark which Thucydides makes respecting 
them applies to many countries in our own times. The discovery of the so-called 
" land-pirates" on the New Jersey shore, a few years ago, and their crime of 
enticing vessels by false lights, are in the remembrance of every one. 



POLITICAL ETHICS, 



411 



their efficacy. If we are allowed to do all the positive law 
permits, one or the other thing must necessarily follow : 
either the laws continue to touch comparatively few relations 
and things, in which case lawlessness must be the conse- 
quence ; or the positive laws embrace all relations, interfere 
with everything, and abject servility must be the conse- 
quence. 

In countries in which the law is habitually and tradition- 
ally considered as the supreme ruler, without which, as we 
have seen, no civil liberty can exist, the citizens are not un- 
frequently exposed by their very reverence for the law to 
extend this positive rule too far, which nevertheless accord- 
ing to the very essence of the state applies to outward actions 
only, and to forget that there remain many actions even of 
political importance which cannot be judged of by laws. 
Thus it is found sometimes that the mere verdict of not guilty 
influences persons who judge of the individual in question, as 
if a verdict in court were meant to be an absolute or moral 
one. We all know that there is a difference between an 
honorable acquittal and one produced only by rules of law, 
which are nevertheless necessary and protective and which 
may leave an indelible stamp of guilt upon the acquitted 
person. Burr was acquitted, but few believed him innocent. 
That justice in its true sense, on the other hand, forbids us to 
judge by mere suspicion and appearance, is evident. Pre- 
tending to regulate all our actions by the law only shows a 
supposition of perfection in the laws,- — which they never can 
acquire, partly because they are the work of man, partly 
because they are gradually and not in all parts evenly de- 
veloped — and a resolution to exclude from our actions all 
those noble principles which cannot be demanded, and from 
which nevertheless the purest actions proceed. 



CHAPTER II. 

Perse%erance. — Justus et tenax. — Necessity and great Effects of Perseverance 
— To persevere, our Purpose ought to be good, the Means adapted to the Pur- 
pose and the Purpose to the Means; the Means concentrated. — Repeated 
Action may supply Power ; undaunted Perseverance may finally decide by a 
Trifle. — Fortitude. — Alarmists. — Excitement and Injustice. — Rabies civica. — 
Calmness of Soul. — Political Fretfulness. — Great Souls are calm. — Peevish- 
ness. — Political Grumblers (Frondeurs). — Chief Points respecting Firmness. 
— Consistency. — Inconsistency. — Obstinacy. 

XII. The graceful spirit of the Greeks attributed even to 
the serious historian the dedication of each part of his work 
to one of the muses. If I could have graced the divisions of 
this book with the names of great and good men, in whose 
contemplation the mind gathers strength and reassurance, I 
should have inscribed this division, in which I purpose to 
treat of Perseverance, with the name of Columbus. Ponder 
his life, weigh his motives, examine his strength of mind and 
tenacity of purpose, unsubdued by sneer, haughtiness or 
clamor, disappointment or difficulty, unshaken by storm, 
rebellion, treachery, or ingratitude ; strong from his first 
obscure setting out in his great career, in the hours of peril, 
in command or chains, in wealth and in poverty, to the last 
moment of his illustrious life : and you will have a better 
commentary, and a real and more inspiring example, than any 
abstract words can give, of those impressive lines in which 
the ancient poet has embodied the two substantial virtues of 
every citizen and of every man who means to do what is 
right and not to leave this life without bequeathing some 
good performed upon his fellow-men : 

" Justum et tenacem propositi virum 
Non civium ardor prava jubentium, 
Non vultus instantis tyranni 

Mente quatit solida, neque Auster 
412 



Political ethics. 413 

" Dux inquieti turbidus Adrise, 
Nee fulminantis magna Jovis manus : 
Sie fractus illabatur orbis, 

Impavidum ferient ruinae ;" ' — 

words which have been hallowed since the brave Corne- 
lius de Witt breathed them on the rack, and expressed his 
firmness against an impassioned prince and an infuriated 
populace, who would not be appeased but by the pure blood 
of the patriotic hearts of him and his great brother John 
de Witt.^ 

XIII. Perseverance, firmness, fortitude, constancy, courage 
and calmness, manfulness, dignity of mind, self-esteem, and 
consistency, are each the same in principle, and only different 
terms applied to a different degree of intensity or different 
relations and circumstances, or they stand to each other in 
the relation of principle and application, or, lastly, they are 
very nearly akin to one another, and one can hardly be 
imagined to exist without the other. 

If we have made up our mind to be just, that is, to do what 
is right (*'ex aequo et bono jus constat, quod ad veritatem et 
ad utilitatem communem videtur pertinere"),^ we cannot ad- 
here to our purpose without perseverance. Every purpose 
and object in life, through all spheres of action, require their 
proportionate degree of perseverance : the tillage of the 
ground requires its degree of perseverance, in the same 



* Hoiaee, Carm., lib. iii. 3. 

» This stern page of history contains one of those periods in the annals of 
mankind which deserve the manly and serious consideration of every true lover 
of his kind. Nowhere, perhaps, are the fearful power of ill-founded and sense- 
less rumor, the exasperation of the multitude even against the wisest and most 
unsullied patriots, and the fortitude of the just patriot, exemplified in a bolder 
instance than in this case. History has done ample justice to the characters and 
great statesmanship of the brothers John and Cornelius de Witt, and the verdict 
of not guilty has long been pronounced by posterity, despite the nefarious at- 
tempts of some writers. The best sources respecting the murder of these patriots 
are to be found in Van Campen, History of the Netherlands, Hamburg, 1833 
(in Heeren and Uckert's series in German), vol. ii. p. 247. 

* Ad Herenn. 



414 



POLITICAL ETHICS. 



manner as the study of a science, the diffusion of a great 
truth or other benefit to mankind, the carrying of a great 
measure or the delivery of a country from foes, foreign or 
domestic, do in their respective spheres ; and the greater the 
object is which we feel in conscience bound to obtain, the 
greater is likewise the effort necessary for its attainment. 
To break a road over the high Alps, or pave it through mo- 
rasses, requires greater labor than the laying out of a path 
over even ground ; and to shed the light of truth in ages of 
darkness calls for stronger minds and firmer souls than the 
application of well-established truths to some single case. 
This no one ever denied ; yet in practice we are apt to forget 
it. Difficulties, derision, clamor, defeats, or the despair of 
receiving due acknowledgment, are apt to dishearten some- 
times the best and wisest. Yet had not Lady Montagu or 
Jenner persevered, the one in introducing inoculation, the 
other in proving the benefit of vaccination, despite all lam- 
poons, derision, and the outcry of fanaticism against them, 
men would to this day, perhaps, be subject to one of the 
most malignant diseases. Had not Frederic the Great of 
Prussia persevered in promoting the cultivation of the potato 
against a riotous opposition in several parts of his dominions, 
many individuals would have suffered famine in later times. 
They trusted to the truth or justice of their cause, and that, 
as Napoleon expressed it, ** public opinion would come round 
again." 

But let us ask here, at once, is this return of public opinion, 
this acknowledgment of truth, a comfort to which man may 
look forward as an unfailing reward, which in the end cannot 
escape him ? It is undoubtedly and happily true that respect- 
ing public measures, in far the greater number of cases, the 
gradual acknowledgment of truth and justice will supersede 
passionate excitement and infatuation, and, still more, a man 
or a measure will gather additional strength from such a re- 
turn of public opinion, after having been deprived of it for a 
period. A citizen never wields greater power than when he 
has firmly stood the tnal, unmoved and calm, and when 



POLITICAL ETHICS. 415 

public opinion returns to him, not he to it. Yet it is equally- 
true that your life may pass in darkness, the best intentions 
may be misunderstood or reviled, and what is not true may 
by repetition acquire the appearance of substantiated fact. A 
man may tell the truth like Marco Polo, and yet, like him, be 
decried as a liar to his grave ; century after century may hold 
him up as an impostor, until after the lapse of ages his strict 
veracity may at length be firmly established.^ We ought not 
to deceive ourselves : appearances may in some cases be so 
strong against us, and by accident or whatever other cause 
evidence to the contrary may be so totally destroyed, that 
the truth can never be known. A bitter fate indeed. And 
what then ? Then, indeed, nothing is left except what is still 
the last and highest support, that derived from Him who is 
the inspiring motive of all noble and heroic actions. Your 
conscience remains ; and even a heathen said, " Justice and 
honesty are truly commendable in their own nature." 

XIV. That the citizen be honestly and firmly persevering, 
requires that his purpose be good and his cause just; that he 
adapt his means to his purpose, and his purpose to his means; 
that he concentrate his means for the one great object in view; 
that he be ever mindful that repeated and uninterrupted action 
may compensate for the absence of great power; and that in 
cases of the greatest trial, when the struggle comes at the 
last between nearly balanced powers, a trifle must decide. 

The first of these positions is clear; for perseverance is 
power, and may be and has frequently been employed in the 
service of wicked ends. The second is, perhaps, equally clear; 
yet a forgetfulness of this rule has disheartened many well- 
intentioned men, while in other cases presumptuous men have 



* Marco Polo, when on returning from the East he gave an account of his 
father's and his own travels, was totally disbelieved, proverbially called a Mar, 
and mentioned by his fellow-citizens by nicknames only, which expressed their 
contempt. The various late embassies to China, however, and the accounts of 
diose who have personal knowledge of it, confirm in a surprising manner Polo's 
veracity. See, among other wor" s, Davis, The Chinese. 



41 6 POLITICAL ETHICS. 

frittered away their talents and gifts, which otherwise might 
have been employed to excellent purposes, and they them- 
selves have ended with a disappointed temper which is ever 
apt to betray men into acts of injustice, or entangle them even 
in nefarious designs projected by men more prudent and less 
principled. We have seen in several previous passages that 
without a degree of enthusiasm, and inspired love of the 
Good, men are in want of a principal inducement to be good ; 
utility alone is insufficient to guide or support us. This en- 
thusiasm, however, must be balanced by modesty, which will 
teach us that we should not assume our opinion as the sole 
guide, and that we must temper our desires and endeavors 
according to the different spheres of action in which it has 
pleased a higher hand to place us. Not a few have injured 
the best causes because their ambition went beyond their 
talent and they would not suffer the first place to be occupied 
by an abler man ; or because they strove for objects wholly 
unattainable. The canvas which a vessel carries must be in 
proportion to the hull and cargo. A distinguished man, who 
was more variously endowed than most men, and most active 
throughout his life, one of the master-men of his age, Leo- 
nardo da Vinci, took the sentence of Terence, *' If that cannot 
be which thou wilt, will that which can be," ^ for the motto 
of his life. He went farther, and says, " Wise is he that 
guides his will by that which he cannot perform." * 

The third principle — to concentrate our strength upon one 
great object — is equally important; for a man cannot fight 
two battles at one time, and it is true in the moral world, as in 
the physical, that a force effects most in a straight line, and 
loses the more obliquely it is applied. Singleness of purpose 
lends great strength. The clear perception of what we want, 



«"Quando non potest id fieri quod vis, id velis quod possit." Andria^ 
ii. I, 5. 

« A sonnet of Leonardo's begins, — 

" Chi non pu6 quel che vuol quel che pu6 voglia, 
Che quel che non si pu6 foUe e volere : 
Adunque saggio e I'huomo da tenere 
Che da quel che non pu6 suo voler toglia." 



POLITICAL ETHICS, 



417 



and in what way we ought to direct our endeavors, increases 
with it. And, again, in order to obtain singleness of purpose 
it is important that we should clearly present to ourselves 
what it is we essentially strive for. No man takes good aim 
at an object enveloped in dimness. Timur, who will be al- 
lowed to have effected mighty things, enumerates among the 
twelve maxims, which he had laid down for himself and 
advises his successors to follow, this as the eighth : " I acted 
with resolution ; and on whatever undertaking I resolved, I 
made that undertaking the only object of my attention ; and 
I withdrew not my hand from that enterprise until I had 
brought it to a conclusion."^ " Quidquid vult valde vult," 
said Julius Caesar of Brutus.^ 



' The Institutes of Timour, translated by Majoi- Davy, Oxon., 1789, p. 157. 

In Eraser's Persia, vol. xv. of the Edinburgh Cabinet Library, p. 229, the fol- 
lowing anecdote is related of Timur, but I am unable to find it in the above 
translation of the Institutes, or the previously-quoted translation of his own 
Memoirs. 

" I once," says Timur himself, in his Institutes, •* was forced to take shelter 
from my enemies in a ruined building, where I sat alone for many hours. To 
divert my mind from my hopeless condition, I fixed my observation upon an anty 
that was carrying a grain of corn larger than itself up a high wall. I numbered 
the efforts it made to accomplish this object : the grain fell sixty-nine times to 
the ground, but the insect persevered, and the seventieth time it reached the top 
of the wall. The sight gave me courage at the moment, and I never forgot the 
lesson it conveyed." A similar incident inspired Robert Bruce, the restorer of 
the Scottish monarchy, with courage to persevere in his undertaking, mentioned, 
for instance, in Scott's Tales of a Grandfather. These accounts, true or not 
(and there is no reason why they should not be true, though there is none, either, 
why they may not be rather the expression of the views entertained of these per- 
sonages in after-times), show, nevertheless, a sound moral in an impressive style, 
and in the whole sphere of practical morals it is salutary if we can compress a 
great truth into the narrow compass of one impressive image or fact, which in 
times of extremity, depression, or excitement, when the state of our mind is unfit 
to reason, presents itself to our soul like a symbol of this truth, and is apt to re- 
mind us suddenly of the result of our reflections in calmer hours. Anecdotes 
of this sort, therefore, are well worth remembering ; but whether we endeavor 
to impress our mind with a summing up of this great virtue in the moral of plain 
yet pointed fable, or an anecdote, or the name of a man who has practised it 
well — a Fulton, Isaac Newton, or Coligny — it is all-important to stamp this virtue 
deeply on the mind in earliest years. 

» As Cicero mentions, ad Att., xiv. I, 2. 

27 



41 8 POLITICAL ETHICS. 

Fourthly, repeated and uninterrupted action may compen- 
sate for the absence of power. The ancients said proverbially, 
" Gutta cavat lapidem non vi sed saepe cadendo." And, like- 
wise, firm perseverance may effect much with small means. 
They were but crazy vessels in which Columbus discovered 
the New World and Ross sought to reach the north pole. It 
is the natural course of things that few great objects are 
brought about at once ; radical changes never. The ideas, of 
which the ultimate changes are but the manifestations, must 
make their way from within outward, from below upward ; 
and for this it is necessary both that a beginning, however 
insignificant, be made, and, if once made, that it be followed 
up by steady action. As Demosthenes was laughed at when 
he first spoke, but by perseverance became the greatest orator, 
so there are few great ideas which have wrought extensive 
changes that were not at first disregarded, perhaps derided or 
persecuted. This first beginning requires courage ; but it 
is one of the noblest kinds of courage. It was necessary that 
Beccaria or some one, whoever he might have been, should 
make a beginning in showing the inexpediency and cruelty of 
most penal systems, before ultimately the great reform of 
punishments could take place which we happily see realized 
in our times ; Salmasius or Filmer must first boldly write 
against witch trials, before the truth could be widely acknowl- 
edged, and positive legislation finally set its seal upon it 
under the dictates of public opinion. The habeas corpus act 
passed in 1679, after having been passed by the commons in 
1669-70, 73-74, 75-76, and rejected by the lords. How long 
was it that Soto,^ the confessor of Charles V., wrote against 
the trade in Africans, before Virginia prohibited it in 1778, 
the United States provided for its abolition in the constitution 
of 1787, and England followed the movement in 1807,^ after 



* Soto de Justitia et Jure. — See Mackintosh, General View of the Progress of 
Ethical Philosophy, section iii. 

2 The American laws of March 22, 1794, April 7, 1798, February 28, 1803, 
March 2, 1807, March 3, 1819, and some others, have reference to this subject. 



POLITICAL ETHICS, 



419 



a parliamentary struggle of twenty years ? Of whatever party 
the reader may be, he will agree that the emancipation of the 
Catholics is greatly owing to Mr. O'Connell's perseverance, 
not to the power or influence which he originally possessed, 
either by riches or rank, but which he acquired by near thirty 
years' unabated exertion. This he himself calls in one of his 
speeches the great secret of his power. Whether he wields 
this power at present for the weal or woe of Ireland, this is 
not the place to inquire ; all we have to consider is his im- 
mense influence, and that he acquired it by singleness of 
purpose and unremitted perseverance, which must frequently 
have been seconded by circumstances, — in which case it 
proves indeed the value of perseverance, — but must also 
frequently have found obstacles in them. Those who ascribe 
O'Connell's power to the mere lawless spirit of a demagogue 
and servile followers, take an erroneous view of history. It 
is his perseverance, in union with his talent, applied to the 
peculiar circumstances offered by his country, which gives 
him this uncommon power of " a shape and magnitude such 
as history never yet beheld."^ Sir Samuel Romilly, after 
having repeatedly reflected upon the melancholy state of the 
British penal law, and having regretted that he allowed him- 
self to be dissuaded from proposing his bill, because it would 
have made a beginning by drawing attention to the subject 
and causing discussion, brought in his bill against the statute 
of Elizabeth, making privately stealing over five shillings cap- 
ital, June 15, 1808; and Sir Robert Peel's law taking away 
death for so many offences only passed in the year 1827. Nor 
has to this day the state of jails been thoroughly reformed : 
the years i860, 1870, 1880, nay 1900, may very easily arrive 
before that be effected ; and yet if within one hundred years 
this be effected, it will be after all but a short time, con- 



and make negro-trading from Africa piracy. There exists a very complete work 
on the histoiy of the negro trade and the long struggle to abolish it, by Albert 
Hiine: Complete History of all the Changes of the Trade in Negroes from its 
Origin to its Entire Abolition, Gottingen, 1820, 2 vols. 

* Raumer, England in 1835, translated from the German,— Letter VI. 



420 



POLITICAL ETHICS. 



sidering the many centuries during which the bad laws and 
erroneous principles had time to grow like reeds in the rank 
soil of passion. 

Fifthly and lastly, a trifle decides in struggles between 
nearly even powers, and therefore in the hardest struggles ; 
but to reduce the struggle to this ultimate apparent trifle 
requires the utmost perseverance and fortitude. An adage 
says a feather may break a camel's back, but it requires all 
the previous heavy load to enable a feather to exercise such 
a power. The holding out of a fortress but one day longer 
may change the aspect of a whole war, may rescue a country, 
decide a victory; but that this one day, this one last effort, 
can be so decisive, it is necessary that the besieged should 
have been proof against all misery and sufferance. However 
gloomy the horizon in politics or war may be, however op- 
pressed a good citizen may feel, this one fact is certain, hope- 
less despair makes it still worse. It is in times of calamity 
that perseverance rises to fortitude and shows man's moral 
power in the noblest light. If the best cause is oppressed, 
fret not, but wait for the due season, and prepare thyself 
patiently and perseveringly for it. Fabius and Washington 
despaired not, however dark and lowering the clouds were 
often around them. It is in times of war that frequently all 
depends upon this fortitude. A defeat, without this quality 
in the commander or the men, may be irreparable ; but un- 
broken fortitude may turn a defeat even to a greater loss to 
the enemy than to ourselves, if we fight for our country and 
he for a cause which does not furnish him with this inexhaust- 
ible moral source. Had Londonderry not held out so perse- 
veringly in 1689, William's conquest of Ireland could by no 
means have been so rapid ; nor could his great ancestor, 
William the Silent, have wrested the Netherlands from Spanish 
tyranny and fanaticism, with all his own fortitude and eleva- 
tion of mind, had not the citizens shown almost superhuman 
perseverance, when many months besieged in Leyden, reduced 
to the utmost misery, so that when at length the hour of de- 
livery arrived they appeared "rather like barely breathing 



POLITICAL ETHICS. 



421 



skeletons than living beings." Palafox, and the memorable 
defence of Saragossa, ought not to be forgotten here.^ 

XV. Single instances of fortitude have indeed produced 
great effects, upon those who were witnesses as well as upon 
after-generations. In a war between the Dutch and English, 
the factory of Jacatra, on the island of Java, was besieged by 
the natives by land and by the English by sea. The com- 
mander's name was Broek. After some parleys, the besieg- 
ing sultan induced the Dutch commander to come into his 
camp, in order to settle further some points. Broek went, but 
was put in chains. He was ill treated and led with a rope 
round his neck to the walls, that he might call upon his 
countrymen to surrender if they would save him from execu- 
tion. Broek, thus placed before his countrymen, entreated 
them not to betray their duty, and to hold out, whatever 
should become of him. It is easy to imagine what the effect 
of his heroism was. 

Yet it is necessary that all be firm, if there is anything great 
to be attained, for without firmness there is no unity, and 
without unity no effect can be produced, neither in peace nor 
in war. For "of men who feel their honor at stake in battle 
more survive than die." ^ 

There are in all communities people of a naturally gloomy 
and desponding disposition: 3 if they are roused by alarm, or 



* Napier, History of the Peninsular War, book v. ; also Southey, History of 
the Peninsular War. 

2 Iliad, 15, 563. 

3 It is in peculiar situations that men show their character in native simplicity. 
I have metw^ithno instance v^rhich exhibits the eager and the desponding charac- 
ters so strikingly as in Captain Ross's Polar Voyage in 1829-1833; yet they are 
no more strongly distinguished than v^o. should find in every society, could we 
but penetrate it. When he and his crew were frozen up, yet hoped still for some 
breeze which might liberate them, the navigator says, " Every hand was held 
up to feel if a wind was coming, every cloud or fog-bank watched, and all prophe- 
sied according to their hopes or fears, till they were fairly driven off the deck 
by the necessity of turning in to sleep. Had we been less anxious ourselves, we 
might have been more amused by observing how the characters of the men in- 



422 POLITICAL ETHICS. 

if originally they unite to a want of firmness of nerve and 
mind a fretful forwardness, a combination of character which 
constitutes the alarmist, they become very dangerous ; for on 
the one hand theii excitement does not allow them to seize 
upon those means which are left, but which calmness only 
can discern ; on the other hand they destroy order and con 
cert, magnify the evil by mutual repetition, and intimidate the 
wavering; while it is they likewise who see a ground for sus- 
picion in every accidental occurrence. Most people who have 
been shipwrecked are well acquainted with the true and 
dangerous character of alarmists, and their helplessness at 
those moments which require the greatest effort. As citizens 
they are not less mischievous in creating and spreading 
panics. . These unfortunate men see in every public misfor- 
tune a crime, and commit in their excitement those acts of 
injustice or cruelty on suspicion of bribery or treason, of 
which history relates so many melancholy instances. No 
man ought to allow himself to be frightened out of his wits 
by disasters and to wreak them on the head of the unfor- 
tunate, as the Athenians visited the loss of victory on their 
generals. 

The repetition of the same thing gives it to the senses of 
every one the appearance of probability; yet many of the 
most exciting rumors are founded upon nothing more than 
that every one repeats it to every one. It does not become 
either truer or less true by this process : all depends upon the 
first source. It cannot be too early inculcated as a rule for 
all periods of life, for man or woman, Ask invariably, but 
most especially in cases of universal rumor, for the first 
source. Who said it ? Who saw it ? Who brought the 



fluenced their conduct on this occasion Those of an eager disposition were 
continually watching the eastern sky, to discover, in the changes of the clouds oi 
whatever else might occur, the first promise of a fair wind ; while the despond- 
ing characters occupied the bow, looking in gloomy silence at the dark sea and the 
sky before them, and marking even without a word their despair of our ultimate 
success, and their fears that our voyage was about to come to an end at even this 
early day." 



POLITICAL ETHICS. 



423 



news ? Whence does he know it ? And this alone will be 
found to be an antidote against many rumors, which lead 
from surmise to suspicion, from suspicion to charge and 
accusation, and may end with a sentence against an absent 
citizen, as in the case of Alcibiades when he had sailed for 
Sicily, and was suspected, upon increasing rumor, to have 
defaced the statues of Hermes shortly before he had set 
sail. Rumors may destroy credit, involve hundreds in ruin, 
seriously injure their reputation, and, as has but too fre- 
quently happened in several countries, in our own as in past 
times, may end in murder. Few pages of history furnish so 
striking an illustration of the evil and often awful effects 
which alarmists may produce, and which are engendered 
by suspicion, alarm, and irritation at misfortune, of cruelty 
in consequence of want of manful calmness, and a total mis- 
understanding of one another, as those relating to the first 
French revolution. The first emigrants were alarmists ; after- 
wards suspicion rose to such a height that the various parties, 
the Jacobins and Girondists for instance, charged each other 
with being sold to the foreign monarchs, after the head of 
Louis XVI. had fallen, and in some cases at least it seems 
that those who made the charge believed in it.^ Therefore, 
be calm, and learn early to be so, by training your mind to 
analyze and dissect rumor, suspicion, imputation, and clamor, 
and you will save yourself many bitter reproaches, which 
otherwise you must heap upon yourself for acts of injustice, 
unfounded alarm, and folly, and will contribute to spare youi* 
community those excesses which have been most truly and 



* We find these charges not only in the heat of debate, but in works written 
after the period of the greatest excitement had passed. In the M^moires de 
Louvet de Couvray, Paris, 1823, i vol., Lonvet, a zealous Girondist, charges 
Marat ^yith having been in the pay of the allies, and Robespierre with having 
surrendered Toulon to the English, because he worked for the allies. All his 
violence was the consequence of a plan to make matters as soon as possible so 
bad that the extreme must lead again to royalty, a charge which we might under- 
stand if brought by one who could not find in the human soul another key to his 
enoimities, but here is a Girondist who, it would seem, in good faith profferss 
this absurd charge. 



424 



POLITICAL ETHICS, 



pertinently called, by one who knew them by experience, 
Rabies civica and Furor civilis ^ — excesses the most injurious 
effects of which are not even the direct injury or cruelty which 
they may produce, but the lowering and degradation of the 
community at large, and the promotion of unfitness for civil 
liberty — the destruction of its sole basis, of justice. 

Since masses or large numbers are peculiarly subject to 
panics, on account of repetition assuming the appearance of 
confirmation of truth, and the want of necessary means in 
most men to ascertain the precise truth, even if they are not 
inclined to yield to sudden rumor, it is a rule, though simple 
yet of the greatest practical importance, that, so soon as there 
exists a general rumor seriously affecting the community, or 
so soon as a panic has seized it, committees ought to be ap- 
pointed, and, if general meetings cannot be held, that men of 
public spirit should appoint themselves as a committee to in- 
vestigate the causes and correctness of the rumor and report 
to their fellow-citizens on the result of their inquiries. Those 
nations who are not well versed in the practical part of civil 
liberty have frequently felt the serious evils which ensue from 
a neglect of this simple rule ; nor do those communities which 
have been longest accustomed to the practical operations and 
machinery of civil liberty always resort to it when it is most 
needed. Yet a committee is to masses what calm reflection 
is to every individual if he receives important news. 

We may mention another reason which requires calmness. 
He who does not tutor his mind will fret under misfortune, 
and as individuals so at times whole communities are irri- 
tated, and consequently unfitted to act correctly, when a gen- 
eral misfortune befalls them. It is manful, and gives self- 
respect, to submit with resignation to evils which cannot be 
avoided, while calmness alone puts us in that frame of mind 
in which we may hope soonest to discover a remedy, should 
it offer itself in the course of events. 

The same principles which determine many great national 



' Hor., Carm,, iii. 24; iv. 15, 17. 



POLITICAL ETHICS. 



425 



actions impel the mind on a smaller scale in limited spheres ; 
and education, be it that by others or self-education, must 
early be directed to the cultivation of calmness. I once found 
a stage-coachman whipping his horses far more than seemed 
to be warranted by a fair desire of getting on rapidly. When 
I expressed my opinion against this cruelty, the coachman 
answered, " Ah, sir, if you knew how my teeth ache !" The 
same principle of action, and the glaring injustice of making 
some one smart, no matter whom or why, because we smart, 
may be found on many pages of history, in actions of vas*" 
extent and of calamitous consequences. Every true citizen 
ought to do his utmost, in times of danger, suffering, 01 
political crime justly calling for pubhc indignation, to calm all 
around him. In this consists true patriotism, not in pouring 
fresh oil into the already fearful conflagration. 

XVI. In speaking thus of the low-spirited or desponding, 
it was not my intention to convey the idea that the light- 
hearted are the most courageous or the firmest when the hour 
of trial arrives, and the grave and more sombre natures those 
which soonest despair. On the contrary, those who have but 
little hope and are generally not sanguine in their expecta- 
tions, yet withal are not of a desponding nature, will be found 
the bravest in times of peril and calamity, while those who 
form the most sanguine and extravagant expectations at the 
beginning are also those who soonest relax and perhaps de- 
spond. Aristotle goes so far as to maintain that great men 
are almost always of a nature originally melancholy. It is 
not necessary here to inquire what precise meaning we should 
give to the word melancholy, in order fully to agree with the 
first of philosophers : all we have to observe is that in politics, 
as in any other relation in which man may be placed, calm- 
ness of mind is all-important; without it we cannot be just, 
wise, manly, or effect great good ; we cannot expect support 
from, or be the support of, others, and we make success a 
matter of chance rather than the reward of wisdom and rec- 
titude. A ruffled temper, acrimony, passionate excitement, 



426 POLITICAL ETHICS. 

which le^ds to extravagant expectation or depression of 
spirits, are no more injurious in the private sphere than in 
poh'tics ; whether we consider the citizen in the primary rela- 
tions of the state, or as representative, officer, or statesman 
proper. But cahnness of mind is a quaHty which can, and 
therefore must, be cultivated, although it is true that some 
individuals are originally endowed with tempers which make 
it easier or more difficult to attain to this exalted virtue. 
Some of the greatest men, and those who have distinguished 
themselves most signally in this very particular, have, accord- 
ing to their own confession, not possessed it by nature. Wash- 
ington — and can a greater example of calmness be cited? — is 
said to have naturally possessed an excitable temper. Socrates 
we know had often to struggle against passion, but he did it 
successfully. Reflect, on the other hand, on men so bounti- 
fully endowed as Alcibiades or Byron, and yet so wayward in 
their livee, brilliant like a meteor indeed, but not blessing by 
a regular course like the sun. This cultivation of calmness, 
however, as has been mentioned already, ought to begin early, 
so that by degrees and perseverance it become another and 
our truest nature. 

XVII. I purpose to consider the absence of the calmness 
of soul in four effects chiefly, namely, fretfulness, discontent, 
inconsistency, and obstinacy, the counterfeit of perseverance. 

The first, that is, fretfulness, has been briefly touched upon 
in a previous passage. It is a sure sign either of littleness 
of mind or distrust in the soundness and truth of our own 
endeavor and object, if an over-anxious desire is manifest of 
seeing everything we hold to be good realized at once, or if 
we stigmatize those who disagree with us. Cases of imminent 
danger, and measures which are to avert it or threaten to bring 
it on, are of course here excepted. A conflagration requires 
immediate help. Great souls, the p-eyaXdipoxoi of the Greeks, 
who strive for the dissemination or establishment of some 
substantial good or truth, are not fretful ; they trust ; if they 
are thwarted they heal their grief, " for placable are the hearts 



POLITICAL ETHICS. 427 

of the noble,"* and do not relax on that account. They know 
that victory will ultimately be theirs, or on their side, even 
if they themselves should long have passed away. They 
trust in the truth of their principles and in the power of that 
truth ; they feel convinced that if the principles are true they 
will assuredly make their way and be realized in practice. 
Great and calm souls look upon their God, who, when He 
created the rivers and the sea, knew that man would invent 
bridges, boats, and sails ; who, when He called the earth into 
existence and placed man upon it, knew that the plough would 
be contrived in due time. Great and calm is his creation. 
While one tree is shattered by the lightning of the heavens, 
innumerable millions grow calmly and slowly; while one beast 
of prey pursues a weaker, myriads are born and unfold silently 
the great principle of life. 

Discontent and peevishness are no less an effect of the ab- 
sence of true calmness, perseverance, and greatness of soul. In 
all free countries, where there are consequently parties, a class 
of men will be found who, if defeated in a favorite measure, 
will retire in discontent and peevishness, treating the existing 
state of things with disdain, as if all wisdom and disinterested 
virtue were on their own side and none on the other, people 
who perhaps with a homely but appropriate name might be 
called political grumblers {^grondeurs and frondeurs)^ and who 
cannot summon up sufficient resolution to consider a question 
as settled, be the evidence ever so strong. They frequently 
show by their own conduct that their sympathy was never 
truly with the people, and that therefore the withdrawal of 
support was not so ill founded. They ought to recollect, 
however, that whether their retirement be seriously felt at the 
moment or not, certain it is that soon they will be forgotten 
and society will learn to do without them. When Walpole 
saw he could not carry the excise bill, that, such as the com- 
bined circumstances were, the nation would not take it, he 
manfully abandoned it, not indeed his conviction that it would 



» Iliad, 13, 115. 



428 POLITICAL ETHICS. 

have been beneficial, but that, good or bad, the nation would 
not have it, and he left it to his adversaries themselves to ac- 
knowledge the soundness of his proposal, which Pitt, after- 
wards Lord Chatham, one of its most strenuous opposers^ did 
not fail solemnly to do, in the commons, when Walpole rested 
in the grave. Retiring in peevishness may lead to various 
political evils ; and the first which naturally presents itself to 
our mind is this, that if tho<^e who have gained the victory 
over you are really an ill-intentioned faction, without knowl- 
edge or principle, and whatever else you may charge them 
with, you only increase their power by your sullen withdrawal. 
If you are convinced of the truth of your cause, stick to the 
vessel of public welfare to the last, and show to the people 
that you really desire the good of the country, and not your 
own advancement, by that buoyancy and indomitableness of 
spirit which, whatever fate your cause may have met with, 
cannot be defeated, because it flows from faith in the correct- 
ness of your cause and will attain for you the esteem of all, 
your adversaries not excepted. 

When, in the year 1739, the British tory opposition saw that 
for a long time to come there was little chance of success for 
them, and the convention between Spain and England was 
ratified by parliament. Sir William Wyndham, with a number 
of his party, seceded, as they called it, from parliament. The 
consequence was that Walpole, his opponent, went on the 
better for it, and the seceders soon regretted their ill-advised 
step.' I would not include in the number of peevish grum- 



« Memoirs of Sir Robert Walpole, London, 1816, vol. iv. chaps. 52 and 53. 
The reader cannot have misunderstood me so entirely as to find in my words a 
palliation for the conduct of ministers who cling more fondly to place than to 
principle, and belie the professions upon which they took office and received 
support, rather than part with the luxury of power. Having chosen Walpole as 
an illustration of the one, we may take Lord Townshend as an example of hon- 
orable and dignified retirement without peevishness, for the other, as it belongs 
to about the same time. 

Brougham, in the life of Tierney, p. 147 of his Statesmen, vol. ii., says, " They 
[the whig opposition] had retired and seceded from their attendance in par- 
liament upon the very grounds which should have chained them faster to their 
seats : namely, that the government was ruining the interests and trampling upon 



POLITICAL ETHICS. 429 

biers the honest Jacobites of the time, for there were certainly- 
some, though probably few. Unbounded obedience, or, as we 
would now term it, legitimacy above the law, had for so long 
a time been preached by many of the highest prelates, ready 
to sacrifice their station to this ill-conceived principle of re- 
ligion, that it is not difficult to imagine men who conscien- 
tiously believed that the Hanoverian race were usurpers, 
however few Englishmen there may be now who would 
maintain that Great Britain would have acted wiser or better 
if she had placed the Pretender on the throne. Those Jacob- 
ites are not to be judged on strictly political grounds, but on 
those of religion and conscience ; nor would we call them 
discontents, but rather malcontents or disaffected. They 
turned their face from the whole establishment of government, 
as we find in antiquity the malcontents sometimes leaving 
their country rather than submit, and planting a new country. 
Political peevishness, moreover, may lead, if it is more 
effectual and general than it has commonly the power to be, 
to political apathy, one of the worst political evils, of which 
more will be said hereafter. Finally, if it should become 
almost regular and constant, it would prevent one of the 
requisites of a free country and of peaceable government in it 
— a sound, lawful, temperate, yet active opposition, without 
which either liberty must vanish or open disaffection break 
forth. Sir Robert Peel, after having struggled to the best 
of his power against the reform bill — and why may we not 
believe that he was honest in doing so ? for so essential 
measures will always be looked upon at the time from very 
different points of view — did not retire in peevishness after 
the defeat of his party; and when for a brief time he was 
called again to the helm, he declared that he considered the 
reform act as a thing settled and done which henceforth must 
be left untouched. Lord Wellington probably disapproves. 



Ihe liberties of the country ; and that the people were not sufficiently alive to the 
situation of their affairs." This happened in 1797. Brougham says further, on 
page 150, that this could never happen now, without throwing up the delegate* 
trust. 



430 POLITICAL ETHICS. 

as much as any tory, of the general spirit which dictates the 
acts of the present Melbourne administration ; yet no citizen 
can be farther from mere political peevishness than the duke, 
as indeed might be expected of so manly a soul. I shall 
consider the important subject of Opposition more fully in a 
future part of the work. 

Most true, indeed, were the words of the weeping Persian, 
who saw that his countrymen were engaged in a ruinous en- 
terprise, and that of all whom he saw with himself under the 
command of Mardonius, few would be living after a short 
time : " The bitterest grief in the whole world is that when 
we have all wisdom we have no power ;"^ but he left not on 
that account his countrymen, he sneered not, disdained not. 

XVIII. Political peevishness is connected with and of the 
same origin with irritability, a quality in the citizen which is 
highly injurious, and not unfrequently makes men deaf to the 
plainest dictates of patriotism, as in the case of Alcibiades, who, 
in consequence of the great injustice done to him, went to the 
enemies of his country. How noble appears, on the other 
hand, the conduct of Aristides, who, when ostracized by his 
fellow-citizens, did not go to the enemy to foment and direct 
a war against his own country, as Hippias had done, but on 
being restored from exile aided his chief political enemy in 
saving the state ! 

I believe the chief points respecting this subject, both eth- 
ical and prudential, may be summed up in the following : 

You cannot expect those to love or support you whom you 
affect to disdain. 

If you make up your mind to be a public man, which re- 
quires calm consideration, as we shall see anon, you must not 
be too sensitive to undeserved injuries or even insults, nor 
charge those that are offered in excited times by individuals, 
to the whole class or party to whom they belong, still less to 
your whole country. Impudence cannot be weakened more 



Herodotus, 9, 16. 



POLITICAL ETHICS. 



431 



effectually than by calm disdain. Wellington was hooted at, 
threatened, and insulted during the reform excitement ; yet he 
seems now to be the pride of all classes and all parties. Poli- 
tics, because they are public matters, matters which affect the 
masses, cannot be otherwise at times than rough and coarse; 
those more tender relations which can grow out of personal 
and individual regard, mutual delicacy, affection, or friendship 
alone, or the more refined relations of purely mental commu- 
nion, cannot, in very many cases, find a place in politics. 

Be sure that, however disappointed you may feel, nothing 
will more steadily aid you than readiness to serve the public 
in whatever place they may put you ; and especially so in 
cases of great moment or danger. Antiquity shows many 
instances of citizens ready to serve in a subordinate position 
after having held high commands. But it is necessary at the 
same time to beware that neither your honor (your adherence 
to principles) be injured, nor that you appear as a courtier of 
the people, sedulously seeking favors at their hands. Few 
things disgust the people, if in a state of any moral health, 
more than obsequiousness ; and a conscientious and honorable 
withdrawal generally finds its acknowledgment as soon as a 
peevish one finds its punishment. Sound popularity must 
be founded, and, like any other affection, first of all, on esteem. 

Withdraw or secede when your presence appears to sanc- 
tion crimes even in a degree. Yet even in this case extremi- 
ties, although extremities only, may demand the contrary. 
Carnot abhorred the murderous procedures of the committee 
of public welfare of which he was a member. Yet he re- 
mained at his post because he considered the conquest of 
France by the allied powers as the greatest of all evils, and 
he was the only one who was able to direct the military move- 
ments. When, in their turn, the members of that committee 
fell under the axe of the guillotine, he alone was exempted. 

XIX. Consistency of conduct is the agreement of one 
measure or step with our previous ones, or it is the existence 
of the same spirit through a variety of measures, their con- 



432 



POLITICAL ETHICS, 



nection with one another as to motive and principle — in short, 
their internal connection. This meaning of consistency will 
be allowed upon reflection to be the only admissible one; for 
actions are like words : they may mean different things, ac- 
cording to the circumstances which call for them, and their 
essential truth and real meaning lie in their spirit, not in their 
appearance, — in short, in their motive and object. If we adhere 
to this meaning of the term, we shall be ready to judge with 
justice of the acts of others, both good and bad, and, for our- 
selves, not to shrink from actions which according to their 
outward form or appearance may seem to militate against 
previous ones of our life, as it will likewise naturally tend to 
make us continue in the right path, if we have originally 
chosen it with honesty and in justice. 

Not a few citizens have been reviled on account of the 
appearance of their actions contradicting their avowed prin- 
ciples, and there are, probably, few cases which require greater 
courage and firmness in an upright citizen than those in which 
he conscientiously adheres to his principle yet does not seem 
to do so, and according to circumstances cannot expect that 
his true motive should at once be acknowledged, especially 
if those whose good opinion is dearest to him misunderstand 
him. Yet conscience and firmness may imperatively demand 
this. When Pope Pius V., the same who with sadness ex- 
claimed that the being pope does not promote piety, was told 
that the inhabitants of Rome disliked him on many accounts, 
he answered, " The more they will deplore me when I am 
dead." It was an answer worthy of the greatest patriot. 

In judging, therefore, of a man's character, we must follow 
the rule adopted by the historian, who does not judge by a 
single act, unless he has the most accurate and minute knowl- 
edge of it and it is one of those acts which incontrovertibly 
establish at once a good or a bad disposition; but he judges 
by the tenor of the whole life of his subject. In doing this 
we become just and cautious at the same time. A single act 
will not easily lead us to condemn a man in whom we have 
always found good reason to repose confidence, nor will it 



POLITICAL ETHICS. 



433 



make us grant confidence without farther knowledge. In 
speaking of Earl Strafford, Forster remarks, with some justice, 
respecting Strafford's early professions of liberal principles 
and prominent co-operation in the Petition of Right, " He was 
consistent with himself throughout. I have always considered 
that much good wrath is thrown away upon what is usually 
called * apostasy.' In the majority of cases, if the circum- 
stances are thoroughly examined, it will be found that there 
has been * no such thing.' " ^ We have to add only this, 
that many people deceive themselves ; they really believe 
themselves liberal, while nevertheless their whole bias is such 
that, when the years of testing actions arrive, their characters 
appear of the opposite kind. 

XX. Waiving the moral view of consistency and viewing 
it merely on prudential grounds, we find that the freer a 
people, and the more necessary for action and power, there- 
fore, the confidence of the people becomes, the more indis- 
pensable is likewise consistency. In a despotic government 
power may be given from above to an individual who has 
shown great inconsistency, but the more popular a govern- 
ment is, the more, therefore, confidence is required, the more 
necessary also is consistency, by which chiefly this confidence 
is acquired. It is a very important matter for a citizen if his 
fellow-citizens can say, " We always know where to find him." 
It is not only so in politics ; it is so in all branches. We trust 
an author in particulars if he has, for good reasons, acquired 
our general confidence. We do not believe Shakspeare to 
have been one of the greatest poets because he makes Romeo 
compare his lips to ** two blushing pilgrims," transporting 
as that sonnet is ; but we know it from this and many other 
passages and great conceptions, from the whole tenor of his 
works, and confide in his genius even though we should find 
a passage or two undeniably unpoetical. We do not believe 



^ Forster, British Statesmen, vol. ii. p. 228, forming part of Lardner's Cabinet 
Cyclopaedia. 

28 



434 POLITICAL ETHICS, 

Frederic the Great to have been a wise monarch because he 
drained the marshes of the Ukermark, but this and a thousand 
other things throughout his life indicate the genius of a great 
ruler. A single speech, however strong or to the point, did 
not make Pitt a statesman, but a series of actions acquired 
for him the support of the large majority. 

Consistency thus gives power by its support of confidence; 
it gives power likewise by the even direction of a series of 
measures all directed to the same point, and is thus closely 
connected with perseverance. 

It will appear evident from the meaning which we have 
attached to the word consistency, which is not to be judged 
of by the form or sign of the action, but by its spirit, that to 
be truly consistent the minor consideration must give way to 
the greater, and finally all considerations to the ultimate end 
of all government, the welfare of the people; so that a citizen 
may with perfect consistency and conscientiousness adopt, 
support, or defend a measure to-day which he strenuously 
opposed at an earlier period, if circumstances have essentially 
changed, not to speak of an improved insight into the subject. 
Lord Wellington and Sir Robert Peel long opposed Catholic 
emancipation ; let us suppose both to have been honest in 
doing so ; if so, they cannot be charged with inconsistency 
for having carried that measure in 1829, if the duke, then at 
the head of the administration, was equally honest in de- 
claring on that occasion that he must choose between eman- 
cipation and civil war of the worst description. 

This consideration is of especial importance regarding or- 
ganic measures — measures which settle some of the element- 
ary principles and features of government, if they once can 
be considered as fairly established and nationally acquiesced 
in. For it is not the duty of every citizen eternally to be at 
war with the society he lives in ; on the contrary, it is his 
actual duty not to be so, except there are specific reasons. 
Nothing can be easier for a candid mind than to suppose 
some Frenchmen to believe in the honesty of their hearts 
that the elder line of the Bourbons is the only legitimate one, 



POLITICAL ETHICS. 



435 



and that the throne of France is usurped so long as there 
does not sit one of that line upon it. Perverted as others 
may consider their judgment, they still will allow such a case 
to be quite possible. Yet though a peer may have these 
views, and although he may have expressed them even pub- 
licly and solemnly at the time of the last French revolution, 
he is not liable to the charge of inconsistency although he 
take his seat in the peers and join in all measures which he 
considers conducive to the public good and the peace and 
prosperity of his country. For, with all attachment to the 
former Bourbons, he may say, " Even they ought in my 
opinion to be placed on the throne only for the benefit of the 
country ; this is the ultimate end of all government and of 
my principle of legitimacy. I cannot place them there; the 
nation seems at large and overwhelmingly to side with the 
younger Bourbons ; the question as for my part is settled, at 
least for the present ; let me then do what good I can." 

Yet this principle, if not applied with conscience and firm- 
ness, degenerates into a political frivolity, which makes it 
easy for factions to seize the reins of government, because few 
resist with firmness the attempt and withhold their assent 
until it may be considered as fairly acquiesced in. Fre- 
quently repeated changes of government demoralize, as they 
frequently grow out of a previous demoralization. They 
unsettle the primary and solemn engagements of the citizen, 
and leave finally nothing but interest, selfishness, corruption, 
as the chief principles of action. They prevent the continu- 
ous development of society, institutions, literature, and public 
morality. The unhappy kingdom of Naples forms a melan- 
choly example. Revolutions are at times not only necessary, 
but salutary, and it is often impossible to return to sta- 
bility after a revolution, except through several intermediate 
changes. Yet it must ever be considered a most calamitous 
state of things if the indifferents and " turn-coats," or, as the 
French call them, ** weathercocks," become the majority.' It 



« The French name for weatherr ock is girouette, used for turn-coat or trimmer, 



436 POLITICAL ETHICS. 

belongs to the subject of revolution, that is, of open rupture 
with the established government, to consider when a citizen 
is allowed or even bound not only to disregard consistency, 
but even the oath (always in its nature a conditional one) 
which he has taken to support the government. 

It hardly need be said that a conscientious citizen must not 
allow himself to be prevented by false consistency from ac- 
knowledgment of error or change of opinion, but he ought in 
most cases to do it frankly, openly, for this is fair towards his 
fellow-citizens, and no mean test for his own conscience, and, 
like every noble action, invigorates the individual. 

XXI. However true may be what Napoleon most pointedly 
said of the single step which is all the sublime requires to 
become ridiculous, the two border no closer on one another 
than fortitude or even heroism and useless or dangerous 
obstinacy; and unfortunately the latter is much more the 
counterfeit of its corresponding virtue than the ridiculous is 
of the sublime. Was it heroic fortitude, admirable firmness, 
or mad obstinacy that made Charles XII. of Sweden per- 
form at Bender those daring acts of indomitable valor which 
no one can read without admiring the original firmness of his 
character, although it may be considered in that case daringly 
misapplied ? But there is a dogged obstinacy in politics 
which is especially mischievous, because it is peculiar to 
narrow minds ; a hard-headed mulishness, which cannot be 
overcome, because it is wanting in the necessary capacity to 
appreciate reasons and circumstances, and because all narrow 
minds are prone to mistake trifles for essentials, and will, if 
naturally endowed with courage, adhere immovably to them 
to the detriment of points of greater magnitude. The nobler, 
the freer, the more conscious a mind of its own native and in- 



tbough the last word does not express the whole and habitual turning about. A 
Dictionary of Weathercocks was published in Paris after the Restoration, in 
which the name of every prominent man since the first revolution is found 
with as many signs of a weathercock as the number of times he has changed his 
political creed; after which follows an account of the changes. There is 
oitter sportiveness in these sad hieroglyphics. 



POLITICAL ETHICS, 



437 



dependent vigor and comprehension, and the more thoroughly 
a heart feels its own elevated firmness and readiness, if neces- 
sary, to sacrifice everything, even life, the more tractable is 
also such a mind to the force of reason, the more pervious to 
truth. The horse is more tractable than the mule; the mule 
more so than the ass. 

Obstinacy is a dangerous quality in every citizen, be he 
representative, counsellor, minister, or ruler, and proceeds fre- 
quently no less from a general heaviness of judgment than 
from a vain reliance solely on the shrewdness so peculiar to 
narrow and small minds (the ixtxpoipoxoi) placed in authority. 
James II. furnishes a remarkable instance of the ruinous 
obstinacy of contracted minds and hearts. A later instance 
is perhaps still more remarkable: I mean that afforded in the 
case of Charles X. of France and his minister Polignac, in 
their long train of infatuated measures, despite all signs and 
warnings of the times, and finally of the hour of revolution; 
when Charles, against the imploring entreaties of several coun- 
sellors and of all the members of his family, insisted upon his 
daring revolutionary measures with a will which would have 
been heroic had it proceeded from an elevated mind in a good 
cause and for his people, and at least respectable had he ex- 
posed himself to any danger and acted boldly instead of dog- 
gedly, but which appeared in its true light the very moment 
after the contest had been decided between the parties. 

Obstinacy is not calmness of soul, but frequently originates 
from the opposite, from an excited state of mind. In what- 
ever light, then, we may view it, justice and firmness — firmness 
which in continued exertion is perseverance; in the even 
spirit of our actions, consistency ; in the hour of trial, forti- 
tude — form the groundwork of political virtue ; and we can- 
not aspire to them without calmness of soul, that essential 
concomitant of every good, elevated, and enduring action, 
which made William I. of Orange, the illustrious and incom- 
parable deliverer of his country, adopt in that fearful struggle 
the motto, " Saevis tranquillus in undis." 



CHAPTER III. 

Moderation. — Excitement. — Passion. — Revenge. — Obscuration of Judgment by 
Excitement. — Honesty. — Veracity. — Kant's Opinion. — Honesty in Money 
Matters. — Desii-e of Wealth. — Love of Independence. — Poverty; its Effect on 
Public Men in ancient and in modern Times. — Necessity of being free from 
Debt. — Liberality. — Peculation. — Bane of Public Covetousness. — Public 
Defaulters. — Periods of Speculation. — Smuggling. 

XXII. Moderation or temperance, the keeping of the 
proper mean between extremes and the tempering of excite- 
ment or passion, is not so much a virtue in itself as a means 
to obtain it. Yet it is so important a one for the frail nature 
of man, and so difficult to become master of, so necessary to 
train ourselves in, that it may grow into a habit without which 
we are always exposed to commit many acts which will cause 
regret, that the ancients, and the school philosophers after 
them, had good reason for counting it as one of the cardinal 
virtues. It has already been stated that it is included in 
strict justice, and all that has been observed respecting calm- 
ness relates to the subject of moderation ; yet so important is 
moderation in politics, because there are so many opportuni- 
ties in all the political spheres for excitement and passion, 
that it will need no excuse if a few more remarks are added. 

First of all it ought to be repeated that we cannot expect 
moderation to stand by us in the hour of trial, as a true friend, 
we cannot expect to listen to its counsel or that it should 
speak with a voice sufficiently loud to be heard when we are 
in a state of excitement, if we have not made it a habit of our 
life. Moderation cannot be acquired unless it be an honest, 
daily-repeated endeavor to temper our appetites and impulses. 
No rider expects a spirited horse to be broken by only once 
putting a bridle on it, or that it should submit to his guiding 
hand when frightened or excited, unless he have it well 
4.^8 



POLITICAL ETHICS. 43^ 

trained by repeated and judicious and patient management 
when there are no startling causes surrounding it. And as 
no habit can ever be so easily and thoroughly acquired as in 
youth, so as to become a second nature, it is necessary that 
we should train ourselves in this indispensable habit from our 
early years. We ought never to forget that our Maker, having 
deeply implanted appetites and impulses in our soul, so that 
they appear afterwards in their native vigor in each individual, 
because indispensable in the whole organization of the indi- 
vidual and household of society, likewise gives to each indi- 
vidual the faculty of reflection and reasoning, and, in order to 
let each individual have a moral value, leaves it likewise to 
each man to rule impulse by reflection. Without this we 
should be machines directed from without, not individual 
moral beings determined from within. 

Secondly, we must remember that in pohtics we act in a 
great number of cases in union with others, who, therefore, 
necessarily excite one another by mutual action and reaction; 
frequently we act like the pilot, surrounded by stirring and 
swiftly-impelling agents or bewildering dangers ; we are often 
called upon to give our unqualified vote immediately after the 
most exciting scenes, and in many cases we act while strug- 
gling with opponents or when we possess power, which in its 
nature is impatient of resistance. On this last point and the 
nature of power I have dwelt at some length elsewhere in 
this book. All these reasons, then, are very strong to induce 
us to train ourselves, and if the young are intrusted to our 
care as parents, guardians, or teachers, to train them in mod- 
eration; while mutual moderation is one of the choicest fruits 
of true friendship in our political life no less than in the whole 
career of man, 

XXIII. There are two evils in particular which can be 
prevented by habitual moderation only, on the one of which 
some observations, indeed, have been offered already, which I 
will endeavor to complete now as far as the object of this 
work seems to require : I mean excitement and revenge. 



440 



POLITICAL ETHICS. 



Passion as much perverts our inner man as it hideously 
changes the outer, which Seneca very justly depicts at the 
beginning of his treatise De Ira. Judgment, justice, truth, 
not to speak of the more delicate yet no less necessary quali- 
ties of kindness, clemency, generosity, and other virtues, which 
flow from the noblest part of the soul, are wholly banished 
from the passionate at the moment of excitement, rage, or 
ire ; and a man who has not acquired the habit of moderation 
is like a tiger ; he may be calm, but it does not depend upon 
him whether he will remain so; a single drop of blood, which 
accident may show, suddenly calls forth his fury. It is true 
that some nations are much more prone to passion than 
others : climate, food, institutions, and national education ex- 
ercise a powerful influence. Thus, the English, and it would 
seem still more so the Americans, are less prone to ebullitions 
of temper than the nations of the European continent, and 
again the Germans less so than the French and Spaniards ; 
but all are men, all have the lurking fire within them, all 
stand in need of training, of being guided by the calmness 
and judgment of reason; especially so as regards not that 
passion which shows itself in sudden irruptions, but the ex- 
citement which gives us lasting oblique views and perverts 
our judgment and train of reasoning enduringly. 

On various occasions I have spoken of the very simple yet 
very important fact that the nearer an object is to our eyes 
the larger it appears, and the less we are enabled to view it in 
all the proper relations of surrounding objects. All insula- 
tion magnifies. Now, if we are engaged in an arduous en 
deavor to bring about a certain object — I do not speak merely 
of what more properly may be called a political struggle, but 
of all measures and actions in which we are engaged with 
ardent intent of purpose — this intent is apt to magnify the 
subject to our eyes, we gradually lose sight of other consid- 
erations, and not unfrequently are betrayed even so far as to 
forget the ultimate object and to be ready to sacrifice every- 
thing to the means. Not only are warriors prone to forget 
that the end and object of all war must be peace; even phy- 



POLITICAL ETHICS. 44I 

sicians have at times forgotten the end of all their art, healing 
the sufferings or assuaging their pain, in the interest of a curious 
operation or the trial of a new remedy. The effect of this 
circumstance in politics is not only that parties forget, in their 
zeal, that parties can be defended only on the ground of the 
ultimate end of all politics, namely, the welfare of the whole, 
but also are very apt to consider each single case, in which 
they are thus zealously engaged, as a peculiar one, a crisis 
demanding therefore peculiar means, and allowing a stretch 
of power or the adoption of expedients which in other cases 
they would discountenance as inadmissible. When a late 
president of the United States changed the ofificers of govern- 
ment on a much larger scale than any of his predecessors had 
done, or than many citizens believed to be warrantable in a 
free government, where every one should be allowed to have 
his independent opinion and to express it in a lawful manner, 
the measure, allowed to be extraordinary though within the 
letter of the law, was excused in the senate of the United 
States on the ground that there had been a crisis. Future 
historians, untouched by the exciting circumstances of the 
time, seeing the objects in their true respective dimensions, 
will judge whether there was really a crisis, or whether it was 
only a state of things which presented itself as a crisis to 
those who had striven to place that president in the chair 
of the highest magistracy, and had become wrought up into 
an excitement which prevented calm judgment and clear 
vision. 

There is no deviation from law, or right and justice, whether 
on a large scale, such as assuming power directly against the 
constitution of the land, or on a smaller scale, such as bribing 
at elections, which it is not attempted to justify on the ground 
of the urgency of the case for the public welfare — this public 
welfare, so truly the end of all government, and yet so fre- 
quently made the pretext of partial measures or the perversion 
of established law and the cause of justice. In South America 
the people unfortunately fly from one crisis to another; it was 
attempted to justify all extra-constitutional measures of the 



442 POLITICAL ETHICS, 

Stuarts, all tonnage and ship-money was extorted by Charles 
I. against the law, on the score of necessity for the public wel- 
fare, of which it was for the king alone to judge. Charles X. 
of France in 1830 broke the constitution by declaring that 
one of its articles, w^hich confided the watching over the public 
welfare to him, demanded those measures by which virtually 
the constitution was declared void. 

XXIV. Excitement, as it obscures the judgment of parties 
and causes them to mistake their own advantage for that of 
the public welfare, is equally powerful in presenting to the 
leaders, or those who have great or supreme power, their 
personal interest as the general interest of the government or 
the people. There is hardly a life of a premier which does not 
exhibit such cases ; and few will deny that Napoleon ended 
by almost completely measuring the interests of France by 
his own. That those who have great power concentrated in 
their hands, and especially, therefore, monarchs little re- 
strained by law and endowed with great wisdom and energy 
sufficient to make all the possible use of this absence of re- 
straint, are peculiarly liable to this distortion in viewing 
things and permutation of interest, is clear from the nature 
of things ; but, as was already indicated when we treated of 
public power, every one who has power is equally liable to 
this great and mischievous error, and the people collectively 
not less so than individuals. Opposition irritates. Want of 
moderation, therefore, will always expose us to practise hasty 
redress or revenge, on a larger or smaller scale, and in a more 
or less violent spirit ; for that excitement which first made 
us :onsider opposition to ourselves or our power, or perhaps 
only dissent from our views, as opposition to the good cause 
or the public welfare, is no less active in causing us to look on 
measures, which in the inscrutable depth of our soul have 
Deen generated by irritation and revenge, as necessary on the 
score of public good. Elizabeth, when consenting to punish 
with death or barbarous mutilation persons who had not even 
written against her power, but had only offended her by touch- 



POLITICAL ETHICS. 



443 



ing in the course of argument points disagreeable to her, 
for instance her age, thought in all probability that it was 
necessary ; her general character seems to warrant it. Never- 
theless, it was revenge cloaked in that abused term, public 
welfare. When Henry IV. of France, so wise in his public 
measures, resolved upon his last war, little doubt can remain 
that in doing so he was accelerated at least by his love for the 
princess Conde, whose husband had carried her to Brussels 
and would not yield to Henry's demands to return to France.' 
It is just to speak of these measures in candor and not to var- 
nish them over because their authors were great princes ; it 
is equally just to look around us and upon ourselves. Men 
in power allow revenge to present itself under a thousand 
different guises, and if it does not rise from within themselves 
it is sure to be introduced as an agreeable visitor by their de- 
pendants. Be therefore peculiarly careful in acting towards a 
man who has opposed you, and especially so if he has offended 
you. You cannot be too suspicious of the deep, uncon- 
scious and transforming processes and workings of your own 
heart. We see but too easily what we wish to see, and, under 
the garb of the advice or demands of others, receive with 
eagerness anything which corresponds to some hidden desire 
within some recess of our hearts. There are several beautiful 
examples not only of moderation and absence of revenge, but 
of conscious cultivated cautiousness lest there might be some 
secret working of offended power, in the life and letters of 
Washington as given by Mr. Sparks. On the other hand, 
let not the sad pages of history, on which the dark acts of 
revenge, whether monarchical or popular, individual or by 
masses, are recorded in letters of blood, be written in vain, 
but let us derive from them their proper lessons. Lastly, by 
moderation alone can we avoid that most fearful agent in 
politics — fanaticism. 



* Raumer's History of the Sixteenth and Seventeenth Centuries, illustrated by 
Original Documents, vol. i. 



444 POLITICAL ETHIL^. 

XXV. Honesty, or the acting in truthfulness, is of the last 
importance in poHtics, and — although it is enjoined in every 
moral code, by every religion which possesses any feature of 
morality, in every course of education, in short, although it is 
universally acknowledged as one of the primary ingredients 
of purity within and correctness of conduct towards others — 
deserves particular attention in a work on political ethics. 
That a man who acknowledges the binding obligation of the 
commandment, *' Thou shalt not bear false witness against 
thy neighbor," is not allowed to tell falsehoods in politics, 
that field of action which depends more directly upon justice 
than any other, however pressing the case may appear at the 
moment and whatever advantage at the moment may deceive 
our eyes with brilliant colors, is too evident to be dwelt upon 
here. Yet we find great laxity as to the obligation of veracity 
in politics: wilful calumnies are propagated, fictitious facts 
boldly proclaimed, the reputation of men attacked in its very 
vitals, under the deceptive excuse of party warfare, as if the 
victory of a party was the ultimate object, and the prevalence 
of truth and the spirit of veracity not more important. The 
term " party warfare" itself is a revolting abuse of language, 
misleading many unwary persons, as all false terms or similes 
do in matters of importance. I find it difficult to write upon 
this subject ; for while on the one hand all that can be said 
must be trite and is denied by no one, reality shows us that 
truth is to a frightful extent abandoned. Thousands and thou- 
sands go every Sunday to church and willingly admit every- 
thing which may be brought forth on the solemn obligation 
of truth, and yet are ready on Monday to asperse in public 
articles the character of a fellow-citizen knowingly with false 
accusations, or with charges which they know that they have 
not taken sufficient care to ascertain. What else can be urged 
against them except " You know you are wrong" ? It might 
be shown indeed that even on merely prudential grounds they 
will act more wisely in adhering to truth ; for truth gives 
power; truth is power; the word of a true man is listened to, 
and to him the people naturally turn for support: but their 



POLITICAL ETHICS. 



445 



conduct shows that they believe that the obtaining of a mo- 
mentary end is more important to them than the great cause 
of universally diffused veracity, honesty, or integrity, what- 
ever name may be given to the same virtue viewed from dif-* 
ferent points. They should not, however, forget that the 
strength of a man or a party does not rest on a single act or 
success ; it is a series of actions, the consecutive manifesta- 
tions, in these acts, of the spirit which produces them, which 
can alone decide and alone acquire that confidence, upon 
which in free countries all power ultimately depends. To 
those who know that in acting as citizens, in whatever 
capacity this may be, private, semi-official, or official, they do 
not shift their primary moral obligation, and who mean to do 
right in politics as in the family or towards friends, in their 
profession or wherever else it may be, let it be repeated, 
though all know it, that God sees all and everything — a truth 
inculcated on the mind of the schoolboy, and of most mighty 
import to the highest statesman or ruler. 

XXVI. Falsehoods are so generally condemned, and they 
recoil with so damning a power upon their utterer, that, as was 
alluded to, an experienced politician would abstain from them 
even were it but for the sake of prudence, well knowing as he 
does, too, that the freer a country the more likely it is that the 
truth of the matter will come to light some day or other. 
There is a sifting and searching power respecting this point 
in free countries, which outstrips all the espionage of the 
police. The politics of free countries places men continually 
in such different positions and so close to one another, that 
more will be brought to light by this natural operation of 
politics than the most skilful police could discover with its 
ramified exertions. As to the damning power of falsehoods, 
there is, I believe, no greater stigma upon the memory of 
George IV. than his base denial in parliament of his marriage 
with Mrs. Fitzherbert, through his adherents who were un- 
conscious of the imposture. 

Wherever men act jointly, especially in some compact body. 



446 POLITICAL ETHICS. 

whether they are incorporated or form a self constituted 
society, or are held together by a common purpose and name, 
they are apt to show great readiness in denying facts which 
might dishonor or otherwise injure the reputation of their 
body ; and men who would not be willing to state any wilful 
falsehood in their own behalf show themselves far less scru- 
pulous in doing so if prompted by esprit de corps. The act 
apparently loses a degree of baseness because done for others. 
Religious or literary societies are not freer from yielding 
to this tempting sin either of wholly denying truth or dis- 
torting it, than political parties or writers who vindicate the 
honor of their countr)^'. Yet that remains true which St. 
Augustine found reason to state : " Falsehood is not to be 
tolerated under the veil of piety," and that " melius est, ut 
scandalum oriatur quam Veritas relinquatur," better that 
scandal come than that truth be abandoned. 

Veracity, the best moral preventive and preservative in pri- 
vate life, is all this in public. Be true, and thus alone you 
will have overcome a thousand dangers besetting the judg- 
ment, moral worth, strength of character, and power of repu- 
tation of a public man. Be true to others, to your life, to 
your soul, to yourself; be true to your time, to the principle 
on which you rose, which has supported you. Had Cromwell 
been but true, how many dangers would his great mind have 
escaped !^ In no sphere is essential veracity, that is, truth of 
thought, of word and action, which is infinitely more than 
mere absence of deceit, more important than in politics : 
" Quid est, quod afferre tantum utilitas ista, quae dicitur, 
possit, quantum auferre, si boni viri nomen eripuerit, fidem 
justitiamque detraxerit?" By a diffused spirit of truth alone 
we avoid that loathsome and demoralizing agent, always busy 
among small and untrue men — I mean cant, be this religious 
cant, such as was frequent during the British civil wars; or 



» [For a vindication of Cromwell from this charge, see Carlyle's Heroes, lect. 
vi. p. 190, Amer, ed. He dissembled, but did not lie.] 



POLITICAL ETHICS. 



447 



philosophical and philanthropic, as during the French revo- 
lution; or theological, as in the Byzantine empire; or of 
loyalty, as under Louis XVIII. ; or of liberty, as often met 
with in the most selfish parties in republics. 

XXVII. Still, the great question of veracity is not exhausted 
by the preceding remarks. We have to deal in politics, at 
times, with wicked, dangerous men, who would betray our 
most sacred interests, and against whom we must struggle in 
the honesty of our heart ; or some of the dearest intere.sts of 
our country may be intrusted to us and imperatively demand 
secrecy, for instance when we are ambassadors in delicate 
transactions ; though even this is far less frequently the case 
than it was formerly imagined to be or was perhaps actually 
formerly the case, when politics were more cabinet politics 
than national politics. Now, it is very clear that we cannot 
be bound to answer anything which the querist has no right 
to ask. But this is not sufficient to solve our question ; for 
no answer, or an evasive answer, amounts in many cases to a 
positive answer, because there may be but one alternative : if 
we do not avow the one, the querist will know that we avow 
the other. Have we in this case the right of denying the 
truth, arguing always under the supposition that the querist 
has no right to ask, or to force the truth out of us, or that the 
most important interests of others depend upon our secrecy 
and that the other has no right to expect truth at our hands ? 
Suppose (and this case might easily take place) that secret 
preparations for a war of defence against an unlawful invader 
or a conqueror are going on in our country, and we are 
asked by one to whom we deny the right to ask, or the pro- 
jecting invader himself, whether such preparations are going 
on. Or a constable, in disguise to catch a murderer, is asked 
by a person to whom it would be the height of folly to ac- 
knowledge his design, whether he is looking out for the pur- 
sued criminal. Or, as a great philosopher has put the question, 
if our friend flies to us for protection against murderous pur- 
suers, we hide him, and they enter, asking, " Is your friend 



448 POLITICAL ETHICS. 

hidden here ?" ^ It seems evident — though it was not so in the 
latter case to that philosopher — that we are not only at liberty, 
but bound, to deny; for otherwise those who have no right 
to ask and connect evil purposes with their question would 
have the supremacy over the honest part of the community, 
even though we might decline answering, because we give 
them the power of ascertaining the truth, which is the sole 
purpose of their asking. That they receive an evasive or 
wrong answer is solely their fault, as in cases of murderous 
attacks it is the assassin who has to accuse himself alone for 
the wounds which he may receive by the attacked person. 
To avoid being misunderstood on so important a point, I shall 
remark here only that society is kept together by communion, 
and communion consists in a very great degree of question 
and answer. Every man therefore has, I take it, a natural 
right to put any fair question, and every man the general 
duty to answer it in the spirit of veracity. There is no neces- 
sity of a specific right to put a question, but on the contrary 
there must be a specific reason which authorizes me to decline 
answering. I am bound by natural law, it seems to me, to 
answer, if I am asked whether this be the right road to such 
a place, and of course to answer in the spirit of veracity; for 
natural law teaches me that man is bound to live in society, 
and he therefore must depend upon others and others must 
depend upon him. 

We arrive, then, at the following conclusions : 

If the interrogator has no right to ask and connects evil 

designs with his questions, and if a mere refusal to answer 

would be tantamount to a direct answer, or would in no way 

lemove impending danger, and most especially if the interests 



^ Kant, in an Essay on the supposed Right of Lying on the Ground of Philan- 
thropy, in vol. vii. of the Leipsic edition of 1838. Kant insists upon it that in this 
case, as in any other, we must say the truth, and betray our friend. Benjamin 
Constant is of the opposite opinion. [The author's cases are extreme ones, and 
the admission that a lie in extreme cases is justifiable is extremely dangerous, 
because the line cannot be drawn between such and others. Moreover, if you 
may lie, why not swear to it ? why not take any means to procure credence ?] 



POLITICAL ETHICS, 



449 



of others depend upon us, we have the right, and in many 
cases the duty, on the principles of justice and necessary de- 
fence of right against wickedness, to disappoint the querist, 
even by misleading him through our answers, as we would 
be bound to mislead a gang of criminals who, having seized 
us, command us to show them the way to a house which they 
intend to rob, or the inmates of which they mean to murder. 
Sir Walter Scott went much farther.'' 

Secondly, if we are intrusted with an official secret, under 
oath of office, by a person who has a right to charge us with 
a secret, which involves that in doing so he must be in his 
lawful sphere, and the secret itself must be lawful, not wicked, 
selfish, or personal, and if we are asked respecting the secret 
by a person who has no right to ask or to expect an answer, 
if declining to answer would be tantamount to an answer, and 
if the importance of the secret warrants the exception, for in- 
stance that our country is for the moment destitute of means 
for defence, we are bound, as official persons, not to divulge 
the secret, either directly or indirectly. Otherwise ministers 
or ambassadors might at any moment be forced to betray 
transactions, the most essential and noblest, of their own 
countiy, to an evil-designing antagonist ; and, as it would be 
the necessary consequence of all abandonment of self-defence 
that the wicked would rule over the honest and triumph over 
freedom, so it would be the effect in this case. 

This is not using bad means for good purposes, or sanc- 
tioning the means by the purpose ; for, as will presently be 



* Speaking in his Autobiography of his having published the Waverley Novels 
anonymously, and the great curiosity in the public to know their author, he says 
that not unfrequently he was directly asked as to the supposed authorship, and 
that he must either have surrendered his secret, which no one had a right to in- 
sist upon knowing; or he must have equivocated, which might have exposed him 
to a suspicion of desiring to be considered the author, without being so ; or he 
must have stoutly denied the fact, which latter he chose, refusing to give his own 
evidence to his own conviction. He flatly denied all that could not be proved. 
If I am not mistaken, either he or Lockhart mentions that he stoutly denied 
the authorship to the prince regent at dinner, when interrogated by him ou 
the subject. 

29 



450 



POLITICAL ETHICS. 



shown, the agreement of words with reality does not consti- 
tute in all cases that truth which is of eternal obligation, for 
instance in cases where that agreement is avowedly not ex- 
pected, as is the case with the poet. Nor must it be forgotten 
that the above two remarks relate only to defence against 
evil design directed against us, and therefore lend no shadow 
of justification to equivocation or positive lying in diplo- 
macy in order to injure others or benefit ourselves, not being 
thrown upon our necessary defence by the attacks of malig- 
nity. The age in which faithless observance of treaties 
solemnly sworn, diplomatic falsehood, and royal mendacity, 
had reached their highest state, may have been the age of 
Charles 11. and Louis XIV. ; those two paragons, the one of 
worthless, the other of ruinous and criminal kings. It is ad- 
visable, therefore, to review that period of history, in order to 
see to how criminal a degree all right, honor, and the barest 
justice may be abandoned, if the principle of veracity is once 
set aside in the intercourse among nations, or of governments 
with individuals.' 

XXVIII. The reason why some conscientious men have in 
theory denied our right of denial of facts — for it is impossible 



* To have any idea of the effrontery and reckless mendacity of Louis XIV. it 
is necessary to read his correspondence with Count Estrades, his ambassador 
near the United Provinces, in Lettres et M^moires, 9 vols., Hague, 1743, or such 
works as Basnage and all that relates to the great De Witt. Charles II., having 
concluded the triple alliance with the Low Countries and Sweden, in 1668, 
chiefly to oppose the conquering spirit of Louis XIV,, declared that it was an 
offence against him and a blot on his reputation to propagate the rumor that ne 
could attach himself to France, and made the most solemn protestations to 
De Witt, while he and his ministers were already receiving bribes from Louis. 
Raumer justly observes, in his History of Europe, vol. vi. p. 48, " There may be 
cases and moments when another has no right to demand the full truth, or when 
pronouncing it, opposite to criminals, may cause the ruin of the noblest plans ; 
but when the free king of a noble people, contrary to his advantage, honor, and 
pledged word, deceives with lies his faithful allies under the mask of amiable 
candor, and in the pay of the unrighteous, it is an infamy so loathsome and 
condemnable that no wrong of a private person can be compared to it, and 
no censure appears too hard." 



POLITICAL ETHICS. 



451 



to carry it through in practice ; or would any one betray his 
child on the weak and abstract obligation of truth towards 
murderers ? — is owing to the danger to which its admission 
seemed to expose (although by no means a greater one than 
its denial) and to a want of distinction between the appear- 
ance and spirit of truth. As to the first, no one can deny it ; 
we must admit that our decision depends upon our judgment 
of the right which he who asks has to ask, and the wicked- 
ness of his purpose — subjects which any person desirous of 
dissembling may easily imagine. But though dangerous, and 
though liable to be perverted by disingenuous persons or by 
our own interested views, it is no more so than a thousand 
other truths, which strictly depend upon the honesty of our 
purpose. We have in no case moral rules which for each 
practical case are absolute; we have always to judge and 
weigh. Yet, although dangerous, it is infinitely better boldly 
to approach the truth and state its precise character, than 
to give abstract rules which cannot, and every one feels ought 
not to be applied. So is the desire of wealth dangerous and 
easily degenerates into covetousness. Yet it is infinitely 
better to pronounce at once that under proper restraints it is 
a laudable desire, salutary in a high degree for society, than 
to teach that wealth is absolutely to be despised, while the 
whole civilized world and all states act and have always acted 
upon different principles. I know of no error which unsettles 
morality more effectually than an apparent theoretical consist- 
ency at the expense of other and equally imperative demands 
of duty, and which, therefore, does not stand the test of reality, 
where the problem is not to act out one single principle, un- 
concerned about everything else, but to do truly and essen- 
tially our duty in all the many complex cases daily occurring 
in practical life. I repeat, however, for my young readers, 
that I have spoken here of cases of exception, that the spirit 
of veracity, the main conservative of private life and the first 
of all demands in science and religion, is of equally primary 
importance for the essential and lasting prosperity of a nation, 
both in domestic and foreign relations. What has been stated 



452 POLITICAL ETHICS. 

here lias been prompted by a desire to diminish hypocrisy, a 
vice no less frequent nor dangerous in politics, and especially 
in those of free countries, than in religion ; by a desire can- 
didly to state the truth. 

XXIX. We must remember that the essential truth con- 
tained in words does not solely depend upon the form of the 
words, but upon their true spirit* If a jury bring in a verdict 
of not guilty, they do not mean to say that the criminal is abso- 
lutely not guilty of the crime with which he has been charged, 
but that he is not guilty in the sense which these words have 
and ought to have in court, according to the circumstances and 
evidence. Nay, more, Lord Mansfield charged juries to find 
the prisoner guilty of having stolen an article of value under 
twenty shillings, though it was manifestly worth much more, 
because another verdict would have brought the prisoner to 
death, a punishment of excessive cruelty, considering all the 
accompanying circumstances. What then did this verdict 
mean, disagreeing as it did, according to the letter, with the 
facts ? It meant that the prisoner ought not to die according 
to the eternal justice in man's heart, which precedes and 
supersedes all enacted justice ; according to the truth of the 
law, which is to punish crime, not commit enormity ; which 
is for the welfare, not for the ruin, of society ; according to 
those principles out of which men will not and ought not to 
allow themselves to be reasoned by form or technicality. It 
is the spirit of words, not that which I arbitrarily or fraudu- 
lently supply, but which they ought to have in the spirit o^ 



* This, it will be observed, means something entirely different from mentaJ 
reservation, which is intentional lying, and of which I have spoken in the Her- 
meneutics. But take the following instance : A wishes to draw on B and to sell 
the draft to C ; C, not knowing A, says, " I will send the draft to B, and the 
moment it is accepted you shall have the money." A agrees, Imt that the draft 
be what it ought to be, he must insert the words " Value received." Although 
he does this in writing, and although he has not received the value, the whole is 
no lie. It is a case in which the form of words differs from the essence of truth, 
according to which the former are entirely in order. 



POLITICAL ETHICS. 453 

truth, which decides their truth, and real meaning, not their 
form/ 

The subject is so grave a one that the reader must permit 
me to dwell for one moment longer upon it. Kant, in the 
previously cited passage, speaks of the absolute demand of 
truth, which according to him forbids us to deny the presence 
of a friend in our house to his interrogating murderer. The 
whole essay seems to me to be inconsistent, from a desire 
of consistency. Kant restricts his remarks upon truth to 
speaking, to words only, and, secondly, he does not men- 
tion the case in which I believe the unanimous voice of 
mankind admits the right to pronounce words which dis- 
agree with fact; I mean the case of a physician, who for 
medical reasons may be bound to deceive the patient respect- 
ing his own state of health, or some news which would 
greatly injure the patient;'^ or when children put questions 
to their parents a positive answer to which would be of great 
moral injury to the youthful mind. If the parent gives an 
answer which if correctly understood would convey truth, 
but understood as it must be by the child does not convey 
the truth, it amounts evidently to deceiving. Why, however, 
does the philosopher dwell on deceiving by words only ? If 
I escape in disguise from evil persons, do I not positively de- 
sire to make a wrong impression upon their minds, and is 
this not speaking an untruth to them ? When Louis XIV. 
harassed the Huguenots to death, were they not allowed to 
escape in disguise, and, had passports then existed, would 
the most pious member of them have tarnished his purity by 
travelling under a false passport ? But does not a written pass- 
port speak ? Do I not say, by showing this name noted down, 
This name is mine ? Under what class must we bring the 
case of writing under an assumed name in order to escape the 



» Lieber's Legal and Political Hermeneutics, where more on this subject is to 
be found. 

' [Many physicians deny what the author here lays down. They say that the 
belief that they will give false answers about the health of patients destroys con- 
fidence in them when they tell the truth.] 



454 POLITICAL ETHICS. 

persecution of enemies ? Calvin made use of seven different 
names in signing his letters, for instance that of Espeville in 
writing to the duchess Ferrara. He could not have done 
it otherwise, and undeniably did it to deceive his enemies. 
Was Quentin Durward wrong in passing the young count- 
ess of Croye as the daughter of Pavilion, to save her from 
the brutal grasp of De la Marck ? That the spirit of truth 
decides, and not its form, appears clearest, perhaps, in the 
case of poets. They are not charged with falsehood for 
stating things as having really happened which have never 
existed. Why are they thus allowed to state in absolute 
terms what is not true, with perfect impunity? Because no 
one expects them in that case to speak the truth, at least 
no well-informed person, and we allow the poet even to de- 
ceive those who believe his statements ; for instance, chil- 
dren. In this case, then, we do not expect the truth ; the 
case which I have put is still stronger. The querist ought not 
to expect the truth, because he acts wickedly. 

If I have not found the precise truth, let others state their 
views, but let us not either pass over the subject in silence, or 
state rules with an absoluteness with which no one does or 
can carry them out, and which necessarily produces therefore 
that evil which invariably follows the acknowledgment of a 
moral rule in theory and its frequent disregard in practice. 
Let us draw our lines distinctly, for indistinctness in moral 
delineations is dangerous. 

I cannot conclude this discussion without recurring once 
more from the exception to the rule, as grateful to the heart 
of an honorable man as the other is painful. The obligation 
of veracity is not only great respecting each case in particular, 
but more so still in a general point of view ; for falsehood is 
poison to individuals and nations ; it weakens the soul, self- 
respect, and consequently energy.' 



* Lord Russell might perhaps have saved his life, and himself for his loving 
wife, a woman who had shown herself so faithful, so great, that every man not 
entirely void of feeling would certainly do all in his power for her, by signing a 
declaration that he had changed his opinions upon the lawfulness of resistance 



POLITICAL ETHICS. 



455 



XXX. The subject of honesty applied to matters of 
moneyed value deserves likewise especial attention in polit- 
ical ethics. I propose to offer under this head a few remarks 
also on liberality, worldly independence, desire of wealth, dis- 
regard of riches and poverty, with respect to their effects in 
ancient and modern times. 

Wealth of itself is not necessarily a benefit to the possessor, 
" No more is liberty, or health, or strength, or learning," * 
or beauty, skill, courage, shrewdness, or experience. Every 
one of these blessings or qualities, unconnected with other 
essentials, has become at times the cause or promoting auxil- 
iary of suffering, vice, or crime ; so in turn has poverty or 
disregard of wealth. In a general view, however, the desire 
of wealth and especially of a competency, that is, of possess- 
ing a fair share in the goods of this world, is not only harm- 
less, but laudable, and its being general is a necessary ele- 
ment of national prosperity. By this I do not mean the 
acquisition of public treasures and forces at the disposal of 
government, but a healthful, vigorous, and industrious state 
of all classes, absence of abject poverty, and of an oppressive 
concentration of riches in a few. Without a generally diffused 
and wholesome desire, not a craving, for wealth, there can 
exist no general desire of independence, one of the very ele- 
mentary principles of practical and sound civil liberty; from 
which a manly love of freedom and a faithful devotedness to 
our country gush forth with a vigor and fulness more free and 
enduring than fVom any other source. 



in extreme cases. His friends, two clergymen, urged him to do it, because they 
tliemselves perhaps believed that this opinion was wrong (though Burnet, one of 
them, must have changed his opinion not long after) ; he was quit with his per- 
secutors, who had sentenced him upon perjured testimony and after unjust trial : 
yet it related to his inmost conviction, which he could not and would not belie. 
His soul revolted at the lie as such, and not, as clearly appears, because he was 
too proud. — Life of William Lord Russell, by Lord John Russell, 3d ed., Lon- 
don, 1820, vol. ii. ch. xvi., and Appendix, p. 265. 

* I think that Archbishoo Whately ha. tre ted the morality of the desire of 
wealth with justice and lucidness in his Introductory Lectures on Political Ecoa^ 
omy, London, 1831, especially in the 2d Lecture. 



456 POLITICAL ETHICS. 

Desire of wealth, in the sense in which it is taken here, 
does not exclude frugality, the contentedness with the worldly 
means at our disposal, and the conscientious regulation of our 
expenses according to them. Frugality forms one of the 
several social elements which are indispensably necessary for 
the continuance of civil liberty, and without which it is im- 
possible to maintain it, however long its forms, such as that 
of a representative apparatus, may continue. The most im- 
portant of these social elements appear to me to be, frugality, 
with habits of industry; a strong sense of justice, and not 
of oppression, be it in parties or classes, government or indi- 
viduals ; honesty, reliance, and love of independence. 

So soon as the majority of a people cease to be in a state of 
substantial independence, eagerly maintaining it or honestly 
striving for it, so soon will appear, below, a large abject class 
of submissive paupers, and above, a turbulent or arrogant 
class of a few powerful proprietors, who indeed may harass 
government or extort great franchises for themselves, but 
must always produce a state of things incompatible with a 
healthy, vigorous, lasting, and not precarious civil liberty, 
bearing within itself the energy to maintain itself With- 
out this love of independence there can be no general high 
standard of comfort, without this no general industry. We 
have seen already in this volume how universal and inborn 
the desire of property is, a principle indelibly impressed on 
the human soul, because indispensably necessary for the sup- 
port and advancement of society and civilization. Covetous- 
ness is not necessarily connected either with general wealth 
or a universal desire for it; on the contrary, we find covet- 
ousness much more universal and in a more hideous form 
with poor and, especially, uncivilized tribes, than with those 
nations which have advanced in civilization. If we sacrifice 
other essential interests to the desire of wealth, then indeed 
it becomes ruinous or vicious; but in this the desire of wealth 
does not differ from any other legitimate desire. Few things 
can be more innocent in themselves than a desire of health, 
yet individuals have existed who have sacrificed children be- 



POLITICAL ETHICS, 457 

cause it was believed that their blood would restore a sickly 
body. What indeed is more lawful and necessary for the 
foundation of the state, and even for the existence of man- 
kind itself, than the attachment subsisting between the two 
sexes ? yet what has led and is daily leading to more vices 
and crimes than this primary principle in the order which the 
Maker prescribed to his world ? 

XXXI. Yet, although we were to take a different view of 
the beneficial effects of the desire of wealth, in general, and 
to believe that it ought to be prevented by institutions were 
we to begin anew — a view of things which it will be remem- 
bered is inadmissible if the opinions I have sought to estab- 
lish in a former part of this volume are granted as sound — for 
us as we now exist, since the accumulation and diffusion of 
wealth have taken place, and since nations have started on the 
path of civilization and do not and cannot remain stationary, 
no alternative is any longer left. Knowledge, industry, and 
civilization do exist, and no greater bane can befall society 
than their existence in a nation in which a large class is 
nevertheless excluded from them. They then become the 
very incentives and hot-beds of vice and crime.' We want, 



* It may not seem gracious to quote one's own words, but if an author has 
previously written on a subject which in a subsequent discussion he must discuss 
again, and he has at first expressed his thoughts as well as he is able, I do not 
see how he can avoid it. I may be permitted therefore to repeat here in a note 
a few words of a pamphlet of mine which was published some years ago by the 
Philadelphia Prison Society on the Relation between Education and Crime, 
especially as, from its nature, it cannot be in the hands of many. As the third 
reason why diffusion of knowledge is necessary, with reference to a diminution of 
crime, I said, " There are no individuals more exposed to crime than the igno« 
rant, in a civilized community; or, in other words, those individuals who are 
touched by the wants and desires of civilization, or by the effects of general 
refinement, without being actually within the bosom of civilization. 

" It is on this latter point that I greatly rest my opinion of the necessity of 
universal education with the European race. Civilization exists with us ; we 
cannot stop it, even were we desirous of doing so ; and the outward effects of 
civilization without knowledge are the greatest bane that can befall any class or 
individual. Ignorance without civilization is no peculiar source of crime ; igno- 
rance with civilization is an unbounded source of crime, both because it lessens 



458 POLITICAL ETHICS. 

then, among other things, general education, be it general by 
private means or by public general school systems. But edu- 
cation, by whatever of these means it may be promoted, re- 
quires wealth. Books, schools, teachers, colleges and univer- 
sities, the support of men who may freely and undisturbedly 
give their whole time to the pursuit or diffusion of knowledge, 
be this as teachers or as individual votaries of the highest 
branches (which are far from being mere luxuries, but are 
like the luminary of the heavens, at the same time shedding 
light and vivifying the earth beneath), require general wealth 
directly as well as indirectly, on account of the time during 
which those that learn or teach cannot be engaged in the 
actual production of subsistence. 

In this as in various other particulars relating to wealth, 
our situation differs materially from that in which the ancients 
found themselves. The amount of knowledge which existed 
in the more primitive stages of mankind was such that a citi- 
zen might acquire that share which prevented him from sink- 
ing below the general level, with comparative ease ; it could 
be orally transmitted, in a great measure, both because it was 
limited and the citizens communed with one another in the 
open air or the market. We have to learn first of all to read, 
write, and cipher, without which we are entirely debarred 
from the general course of civilization, but with which we 
have acquired as yet nothing but the merest instruments. 
Every branch of knowledge, those necessary for the citizen 
at large included, has vastly expanded, and requires patient 
study, which, again, requires time. The ancient states — I 
speak of the free and best, not indeed of those vast empires 
in the East, which were in a constant process of transformation 
— were, as we have seen, city states, in which the citizens 
could orally commune on their far less difficult questions of 



the means of subsistence and lowers the individual in the general and his own 
esteem — it severs him from the instructed and educated. Instances are afforded 
to us in the lowest, most ignoiant, and destitute classes in all large cities, or in 
some frontier tribes, who receive certain views and notions of civilization, and 
yet live without education and instruction." 



POLITICAL ETHICS. 459 

politics ; we are in want of newspapers, reports, and books, to 
weigh justly our politics, which to the blessing of mankind 
become daily more the questions of mutual compromise, of 
poising each other's rights, and hence less absolute or aut- 
archical, but more complicated. The accumulation of wealth, 
that is, the saving and storing of labor, has increased ; this, 
together with the infinitely greater population of modern 
states and brisker industry, has greatly elevated the common 
standard of comfort. A pauper in England receives among 
other things an allowance of tea ; a private soldier is furnished 
with comforts in food and clothing of which the ancients 
knew nothing. Ancient civilization was in its character 
Southern, an out-door civilization, if I am permitted to use 
the expression ; modern civilization is Northern, an in-door 
civilization, ever since the stream of civilization has run 
among the Northern tribes. All these circumstances have 
contributed to elevate the standard of comfort, and to make a 
degree of wealth, by way of property, or periodical remunera- 
tion for skill or knowledge as wages, or salaries, more desirable, 
indeed necessary. Merely to maintain a respectable position 
— I do not speak of a positively influential one — a consider- 
able share in the national wealth is necessary. A man must be 
able to dress himself and his family with propriety, and to keep 
his home neat, merely not to sink below the common level, 
or to commune with others, without which he cannot share 
in the common stock of civilization. A man in antiquity 
might contrive to live in a tub, and yet be styled a philoso- 
pher ; in modern times he would be taken up under the va- 
grant law : it was possible to teach, in ancient times, walking 
from place to place ; a teacher, to have any influence now and 
to promote seriously and conscientiously the cause of knowl- 
edge, not merely to obtain money from the curious, must 
have at least a respectable station, though he may be poor, 
and honorably poor, in so far as this applies to the actual 
possession of property. 

XXXII. Desire of wealth, then, not desire of riches, is 



460 POLITICAL ETHICS, 

salutary as a national impulse and is not immoral in the 
individual ; but, before all, a generally diffused desire of inde- 
pendence is an absolute requisite for free and moral action — 
moral and mental independence within, and independence re- 
specting social relations without. The latter may be attained 
in two different ways, either by acquiring the worldly means 
of independence, in property, trade, or salary, or by lopping 
off our wants, to satisfy which only we desire the former. The 
latter can be carried to but a limited degree in modern times, 
for, as was said, though a man were to resign all luxuries 
and expensive gratifications, he would still be, in modern 
times, very dependent without any means ; he could not in- 
form himself on the most important subjects of the times, and 
would be excluded in a very great measure from intellectual 
intercourse. Instances strongly illustrating this position are 
not wanting in the literary history of the latest times. But 
though the desire of accumulated wealth is unimpeachable^ 
and many of the noblest of mankind have possessed it to- 
gether with an elevated spirit of liberality and true independ- 
ence of mind, it is nevertheless true that very frequently a 
total absence of it is the accompaniment of nobly-fashioned 
souls, of patriots and statesmen as well as the votaries of 
science, the arts, or religion. There is no general obligation 
to pursue wealth ; all that can be demanded upon ethical 
grounds is the endeavor to make ourselves independent ; if 
we are so and feel so with small means, and if we can serve 
our species better by pursuing other branches, at the entire 
expense of the pursuit of wealth, be it so; but it is important 
to observe that upon every consideration, private or political, 
it is necessary to keep ourselves free of debt, and not to live 
upon the bounty or support of others, in whatever form it may 
be proffered.^ Being in debt is very apt to hamper free action, 
to destroy the necessary freedom of judgment and buoyancy 



* This does not include a fair contribution on the part of the fellow-citizens 
after a public man has sacrificed, in times of danger, his private means for the 
public good. 



POLITICAL ETHICS. 461 

of mind, when the " res angusta domi" weighs upon the mind, 
and the man, as private citizen, magistrate, representative, or 
leader, feels dependent, straitened, and cramped in his vote or 
any other political action. Not a few statesmen have been 
prevented from boldly and honestly taking that course which 
their genius or inmost and genuine bias of soul and sympathy 
pointed out to them, solely because they were indebted, first 
in a pecuniary way, and consequently by way of gratitude or 
decency, to those who assisted them. It is not necessary that 
they actually sell their better judgment : the worst effect of 
continued straitened circumstances is that they affect uncon- 
sciously even the nobler minds. Nor is it necessary to men- 
tion here how much influence there is always and necessarily 
attached to the possession of substantial property or to a suf- 
ficiency yielded by a profession in the community in which 
we live. All its members feel that in weal and woe we 
are entirely one with them. As to the establishment of a 
family, a competency is still more desirable. Still, there are 
most noble souls in whom this element is so entirely want- 
ing that they alienate all worldly means so soon as they flow 
to them. They ought then to force themselves the more in 
some manner or other to contrive, if not to collect wealth or 
riches (for, being against their nature, it would only harass 
them in turn), yet surely to save so much as is necessary to 
keep them free from obligations to others. Yet so noble is it 
to be liberal, that the community will always be inclined to 
look indulgently upon such a man ; while the fault on the 
other side, meanness, infallibly ruins a man in the esteem of 
his fellow-citizens, and justly so. For, while disregard of 
wealth, even in an injudicious degree, may and frequently 
does co-exist with the best qualities of the soul, which indeed 
not unfrequently are the first cause of it, meanness is the cause 
and effect of a hundred other low qualities of soul, against all 
of which even excessive liberality is a proof and evidence. 
The almost unexampled influence which Pitt certainly did 
enjoy, and by which he ruled England in a period of the 
greatest difficulty, was essentially aided and supported by the 



462 POLITICAL ETHICS. 

perfect conviction which all England had of his disinterested- 
ness in money matters, and that while he made peer after peer, 
while he appointed others to the most lucrative offices, and 
millions passed through his hand, he was known to be neither 
extravagant nor ever even easy in circumstances, a situation 
which could only remain unembarrassing to so gifted a mind. 
Whatever may be the judgment which we feel called upon to 
pass in calm reflection, still we feel constrained to respect his 
disinterestedness, when we read that this premier of the 
wealthiest nation on the earth was giving a political dinner to 
the ambassadors and high functionaries up-stairs, while below- 
stairs an officer was waiting to lay hands on him for debt ; 
especially if we remember that Pitt was in possession of a 
profession to which he would have recurred if turned out of 
office, and that he might have been wealthy had he not sacri- 
ficed all private considerations.* We must also remember 
that the people knew that the embarrassments of Pitt were 
not caused by prodigality, or dissoluteness in gaming or 
otherwise. When the king of France offered two rich abbeys 
to Richelieu, which had belonged to one of his enemies, he 
said, though I own he was then rich, and in his position at 
that time could not well avoid becoming so, " My ambition 
aims higher, at a place in universal history." There is hardly 
a history of the first French revolution in which mention is 
not made that after the arrest of Robespierre a few pieces of 
money only were found in his bureau, nor was he possessed 
of other property. Even his crimes, great as they are, we 
feel might have been increased had he added avarice to them, 
as some of his companions in guilt actually did. How edify- 
ing are those accounts of the ancients, Epaminondas, Philo- 
poemen, Fabricius, and many others, upon whom the offer of 
wealth or their own poverty had no sort of influence ! How 
cheering is the life of Pym also in this respect ! He died 
without any property, having sacrificed all his time and 



" Wraxall gives several remarkable anecdotes of this trait in Pitt, in his Post- 
humous Memoirs of His Own Times. 



POLITICAL ETHICS. 



463 



energy to his country, and parliament had to pay the small 
amount of debt which he left. Compare these examples of 
freedom from sordidness with those favorites, of whom history 
mentions so many, who used the ascendency they acquired 
over weak-minded monarchs, to accumulate riches, however 
illegally, unrighteously, or cruelly gotten, and to make every 
one of their kindred participate in their plunder. 

The rule, then, for a public man, or one who feels a calling 
to become such, in a free country in modern times, seems to 
me this : 

Keep yourself independent, which includes first, as a matter 
of course, a total discarding of that silly and little-minded 
desire to rival your rich neighbor in his way of living, and 
secondly, that you should be possessed of the means of main- 
taining yourself, be this by the possession of a moderate 
property or a profession or trade (Spinoza was a glass- 
grinder) ; and, that these means may be easily acquired (for 
otherwise you would not feel independent), reduce your wants 
to the lowest degree compatible with a continued communion 
with your fellow-beings, by way of intercourse with your 
neighbors, and by way of books with the distant and dead, 
on the one hand, and a decorous but modest maintenance of 
your family and the sound education of your children, on the 
other. 

XXXIII. The desire of wealth being natural, and especially 
so in modern times, we must most scrupulously guard our- 
selves against its excess, in its various forms and manifesta- 
tions, meanness, covetousness, dishonesty, and whatever other 
evils or vices arise from it. In every light in which we may 
view the subject, it urgently demands our undivided attention. 

All nations have abhorred peculation, by which we may 
understand, in its widest sense, the abuse as well as the pur- 
loining of public property, and which may consist in using, 
for a limited period, public funds or property for private ends, 
in purloining and robbing them, and in the abuse of official 
information for private gain. I am not aware that the latter 



464 POLITICAL ETHICS, 

has ever been comprehended within the term peculation, 
though it is punishable according to several codes. But, philo- 
sophically speaking, it is certainly a species of peculation ; 
for it belongs to the same class of dishonest actions, springing 
from the same immoral source, with the crime of peculation 
properly so called.^ 

Excessive ambition, excessive attachment to kinsmen or 
friends, nepotism, excessive party attachment, excessive shame 
to confess wrong, excessive love of action, all have become at 
times injurious to the state, and may most seriously disturb 
its essential prosperity; but none of all these passions can be 
compared in their baneful effects to public dishonesty. All 
the former may still co-exist with some redeeming qualities ; 
we may think even of conspirators against their country, im- 
pelled by criminal ambition, not without feeling horror indeed, 
yet without actual loathing, but we cannot so regard a band 
of peculators. Peculation presupposes meanness and total 
degradation, which do not absolutely belong to the ambitious 
conspirator. A man who commits knowingly wrong for 
money, who sells himself, has been considered the most abject 
of evil-doers, and may be supposed ready to commit all the 
evil acts of the others besides his own crime. So soon as 
covetousness becomes general in a civilized nation, so soon 
as dishonesty is a general crime, so soon as public places 
are considered by common consent as fair opportunities to 
enrich their holders, willing to wink at each other's em- 
bezzlements, so soon as parties consider themselves by their 
success entitled to the spoils of the public — so soon there 
is a deadly cancer in the vitals of that society, and hardly 
anything but severe changes and revolutions can save it 
Justice will be sold, bribes become common, public opinion 
become vicious, veracity will be disregarded, patriotism be 



^ It is certainly one of the worst because most unprincipled kinds of peculation, 
if government favor private persons with information, or early knowledge of 
messages, etc., because they belong to the same party. The most criminal abuse 
of power, however, in this province is if a minister or other officer spreads false 
news to raise or depress certain funds for private speculation. 



POLITICAL ETHICS. 



465 



derided, every memory of greatness or nobleness be dis- 
graced, oppression in every degree become general, and the 
moral tone of society at large, which must always remain 
the first spring from which public prosperity flows, will 
vanish. The history of the period of Charles II. furnishes a 
melancholy example; bribed judges, lists of members of par- 
liament paid by the French ambassador, and, to crown all, a 
king in the traitorous pay of the greatest enemy of his own 
country.^ The history of France before and during the first 
revolution,^ the history of Italy, the history of Spain, of Por- 
tugal, all prove the same. Peculator after peculator was sent 
from the mother-country to the colonies of the peninsula, and 
the consequence even now is the low moral tone and endless 
misery in the republics of South America. No history, how- 
ever, is perhaps so impressive on this subject as that of Rome 
from the second Punic war, and especially under the emperors, 
and of Athens.3 Individuals are exposed to follies or criminal 
imprudence if they do not take heed of past misfortunes 
brought on by faults of their own ; nations do the same if 
they neglect their own history, or that of other states, which 
exhibit a warning with awful solemnity such as is contained 
in Roman history ."^ 



^ Among other works, the Diary of Samuel Pepys, London, 1825, deserves to 
be read on this account. 

* Montesquieu dwells upon the universal dishonesty and covetousness as one 
of the greatest evils of France. The memoirs of all the different reigns show this 
vice in a frightful degree. Nothing strikes the reader of the memoirs ascribed 
to Sully so much, besides the glorious relation between two great men like Henry 
and Sully, as the rank poison of universal rapacity through the whole leading 
class of the nation, from the prince of the blood to the counsellor of parliament 
or farmer of the taxes. 

3 «* The desire of gain destroyed all sense of equity." Boeckh, Public Econ- 
omy of Athens, London, 1838, vol. ii. p. 129. Athens suffered fearfully in con- 
sequence of the lavish distribution of public money by the popular leaders, partly 
obtained by excessive fines and confiscations by bribes and by exactions from 
foreigners. As above, vol. ii. p. 1 14, and many other places. 

4 Sismondi, History of the Fall of the Roman Empire, — part of Lardner*s 
Cabinet Cyclopaedia ; but, before all, Gibbon's History of the Decline and Fall 
of ♦he Roman Empire. It is a melancholy fact indeed that Gibbon is littlo 

30 



466 POLITICAL ETHICS. 

XXXIV. A general argument by which public defaulters 
endeavor to appease their conscience or to present themselves 
in a less guilty light before others, if detected, is that no one 
feels their robbery, the amount being but a trifling sum for 
the state ; thus making the immorality of the act rest alto- 
gether on its momentary effect. Society, however, does feel 
it, for common dishonesty is a moral dissolvent. Yet even 
were it not so, could the dishonest act never be discovered, 
is the defiling of his own mind, his own soul, the admission 
of shamelessness and dishonor, nothing ? Is he not injured 
by it ? does he not rob much more from himself than from 
the public ? Is he not a criminal in his own conscience, and 
a greater criminal the higher the trust that was placed in 
him, and the less he was pressed by actual want or corrupted 
by contaminating society ? The crime of defaulters generally 
is far worse and more pernicious to society than theft. 

The danger of peculation is the greater, the freer a state 
is, not only because the greater liberty requires the greater 
morality for its support, but because the more despotic a 
monarchic state is, the more is government concentrated in 
one visible person. Peculation, consequently, is considered 
and punished as actual robbery of the monarch's personal 



read now ; general observation would lead one to the conclusion ; it is a tact 
likewise confirmed by the booksellers. They sell but few copies in the United 
States, compared to what they did but fifteen years ago ; how it is in England I 
do not know. This is much to be regretted. So mighty an empire ought not to 
have crumbled into dust, with so many crimes and such unspeakable suffering 
for centuries, without our heeding it. In the decline of Rome we see a large 
and most remarkable state in a state of maceration. The physiologist derives 
some of his most important knowledge of the sound body from the diseased ; the 
deranged functions and pathologic anatomy aid him in arriving at a true knowl 
edge of the healthy state ; the philosopher of the mind derives valuable instruc 
tior from observing the insane; the anatomist learns the organization of the 
livii:g body from the dead : so also is it in politics. The disturbed functions of 
bodies politic teach us how sound ones operate. Nations passed by are our sub- 
jects ; they lie still under the scalpel, and we may inquire with a mind unaffected 
by influences of the present times. 

Or is Gibbon so little read on account of his skepticism? I hope not: it 
would betray very little confidence in the power of truth. 



POLITICAL ETHICS. 467 

property ; it acquires much more the character of common 
roguery and theft. The freer a state is, however, the less 
personal and the more national becomes the government; the 
personal image vanishes. Royal property in England appears 
justly much more as national, as public property than in 
Russia ; and in America public funds are the property of an 
entirely invisible thing, of the United States. Persons there- 
fore who have paid little attention to moral principles, in 
whom strict morality has not on account of itself been instilled 
in early youth, feel less reluctance to rob this invisible institu- 
tion called state, or invisible body called public, than they 
would feel perhaps in robbing an individual monarch. Be- 
sides, the freer a nation, the more impediments there are in 
the way of arbitrary justice, on which the defaulter calculates, 
while in despotic governments the arm of power reaches such 
a criminal without the intervening obstacles carefully raised 
to protect possible innocence. 

In ancient times there was greater opportunity of pecula- 
tion, on account of the less thorough organization of the ad- 
ministrative part of government, and the comparatively feeble 
control at least of distant officers, owing in part to the more 
general want of skill in writing and of cheap and common 
writing-materials. But, on the other hand, there is greater 
temptation to peculation in modern times, because wealth is 
more generally desirable ; money has a greater value, consider- 
ing what we may obtain for it ; and the easy intercommuni- 
cation between distant countries, as well as the more extended 
credit, owing to greater security, gives to money altogether a 
much more intense action. The meaning of money has con- 
siderably changed ; speculating at present is an action which 
may attract an active mind of itself. All these circumstances 
are so many inducements to an individual of lax principles to 
seize upon what does not belong to him, not unfrequently 
with the hope of replacing the money; especially in periods 
when at times whole nations are bewildered with a frantic 
covetousness and feverish desire of becoming rich and rapidly 
so, not by labor, exertion, careful combination, and patience, 



468 POLITICAL ETHICS. 

but by speculation, however fictitious, mad, or even fraudu- 
lent, or playing at chance. It was such a period when the 
whole British public seemed to be seized with an anxiety to 
embark in any even the most egregiously foolish enterprises, 
at the time of the so-called South-Sea scheme ; ^ such, too, 
has been the feverish period which we ourselves have lately 
passed through in the United States — a period the evil effects 
of which will be observed by the careful and attentive long 
after the superficial shall see all former prosperity restored. 

If, therefore, frauds in public funds have taken place — for 
they cannot be entirely avoided, since it is impossible to know 
thoroughly every one who is to be trusted in public service — 
the whole society is deeply interested in eradicating the evil 
as far as possible. In the best society the most enormous 
crime may be committed. It is the act of the individual. But 
if the society, from laxity of principle and public moral 
feeling, allows the crime to pass unpunished, it becomes the 
crime of all. So with public criminal defaulters. If society 
omits to punish them, if the people, finding their officers lax 
or unwilling to punish these crimes, do not rise in indigna- 
tion and call with one voice for the trial of the offenders, they 
make the act their own. It is pusillanimous and most injuri- 
ous to punish the actual defrauder or peculator only, and not 
the higher and highest officers who by guilty indulgence or 
neglect of rigid control have contributed their share in inflict- 
ing this wound upon the vitals of the state. In this case, as in 
others, we must not forget that the more extensively we may 



« Anderson's History of Commerce. He gives a list of the schemes, some of 
which appear, now, so ludicrous, if we can forget the general calamity of the 
country at the time, that we should almost discredit him, had we not seen very 
similir things in our times, when "lots" in cities were sold at high prices, 
although of the cities nothing but the name and perhaps the incorporating act 
existed, while the aboriginal trees were yet standing in their majesty upon the 
intended spot, and wasted their example of lofty yet slow and patient growth 
upon the maddened multitude at the distance, who thought that villages and 
towns might spring up with the same rapidity with which the painted village?- 
are said to have been erected at a distance from the road on which the empress 
Catherine of Russia travelled through the Crimea. 



POLITICAL ETHICS. 469 

produce a good effect by one legitimate punishment, the more 
it is our duty to punish, and that punishing one high person 
has a more impressive effect in public morals than punishing 
many lower officers. Impeachments of ministers are, if just 
and true, sound and highly beneficial exercises of the power 
which the constitutions of free countries trust to the hands of 
the representatives. They consolidate liberty and stamp the 
history of a country with that warning seriousness without 
which one of its best elements is missing. 

XXXV. If a spirit of dishonesty in the officers is immoral 
and detrimental to the prosperity of the commonwealth, it 
is but little less so if there is a similar spirit of robbing the 
public in the citizens at large. The truer a government in its 
character, that is, the more directly or materially it tends to 
the common benefit, the greater is the wrong against our 
fellow-citizens committed by fraudulent avoidance of the pay- 
ing of taxes, or any other dishonest act against the public. 
At the same time, it is perfectly clear that the more tyrannical 
or iniquitous a government is, the more it maintains itself 
by force, and the more grinding its own oppressive and rob- 
bing character is, the more a citizen becomes absolved from 
that conscientious frankness and spontaneous co-operation in 
supporting the government, which form the pride and vital 
energy of good, free, and wisely-conducted governments. An 
upright man cannot be expected not only to pay cheerfully 
his taxes, but to pay them with a voluntary co-operation 
on his part, if he sees the money wrung from the sweating 
laborer not only uselessly squandered but actually spent for 
iniquitous purposes, such as the maintenance of mistresses 
and favorites branded with infamy, or the oppression or per- 
secution of the innocent. I do not discuss here the subject of 
refusing taxes. This belongs to the province of obedience to 
the laws and resistance ; here we have to weigh only how the 
citizen ought to act when he thinks there is not yet sufficient 
reason for resistance, or when it would be too dangerous 
dn experiment, or on whatever other ground he does not 



470 POLITICAL ETHICS. 

resist. It would appear just and reasonable, as a general prin- 
ciple, that the more a government deviates from its true aim, 
namely, the common good, the more prodigal or iniquitous it 
becomes, the less is a citizen bound to co-operate on his part 
spontaneously to contribute his share ; the more right has he 
to leave the whole to those who have the power, and to let 
them make out, demand, and obtain their taxes as they can. 
He is perfectly justified in paying as little as possible, even 
though the share assigned to him be too little according to 
the principle laid down by government. They establish it, 
they have the power, let them obtain it. This, it will be per- 
ceived, is but a negative action ; I do not speak of fraud, false 
statements, etc. 

Different from the above is smuggling. Of course smug- 
gling by way of false entries, perjury, or bribing custom- 
officers is too clear a case of ruinous immorality to deserve 
any farther attention respecting the ethic principle involved 
in it. As to its baneful consequences and the general state 
of moral degeneracy which it requires before it can become 
general, we need only to examine the state of things in such 
countries as China or Mexico, to be fully and deeply im- 
pressed with the evil. A man does not easily perjure him- 
self or allow himself to be bribed at once or in one particular 
sphere. The spirit of action does not depend upon its out- 
ward form, but springs from the inner original source of moral 
feeling. If it becomes turbid, the impurity will flow into 
other actions likewise. But the question is, and actually has 
been put and discussed, whether a man has not a right to 
smuggle, or otherwise to evade, not by mere omission on his 
own part, but b}^ positive action, the customs levied by gov- 
ernment ; provided he be perfectly willing to submit to the 
penalty affixed to this action by those in power in case of 
detection. Those who have maintained that he might, have 
started from the wrong view of a total separation of the gov- 
ernment from the society over which it rules. We have seen, 
however, that the state is natural, essential, and necessary, 
and that government is but the means and contrivance to 



POLITICAL ETHICS, 47 1 

obtain the ends of the state, and obedience to the laws is of 
itself a general duty. 

The smuggler, moreover, robs the conscientious part of the 
community, because as far as the goods smuggled by him 
are concerned he saves the tax which the scrupulous have to 
pay for their goods ; he declares himself in opposition not to 
a set of men but to the laws of his country, hence more or 
less to the society at large in which he lives ; he must accus- 
tom himself and his whole family to fraud and violence, — for 
it is but futile to suppose that a man becomes a smuggler 
without being resolved at the same time to resist violently in 
case of detection while in the act of smuggling, — and he pre- 
vents that easy, even, and healthful operation of the laws 
which is one of the fairest attributes of a well-governed 
country. Experience in every country proves our position. 
Smugglers by trade have never yet been found otherwise than 
a highly dangerous, because lawless and violent, class. 

It may be well to remember here what was said at the 
beginning of the work, that in a moral point of view we never 
can act through another ; we either act or suffer : a mean is 
not possible. There is additional baseness in the action if we 
abet and aid in offences but have not the courage to commit 
the act itself, as for instance there must be always sly re- 
ceivers who sell, where there are sturdy smugglers who im- 
port. I know of some former cases of piracy in the West 
Indies — and wherever this crime is committed they are not 
rare — when merchants, apparently fair in their dealings, re- 
ceived goods obtained by piracy and had previously lent 
capital to the pirates to lay it out in their criminal business, 
excusing themselves on the ground that they had never been 
told for what the money was wanted or whence the goods 
came, and that they were not bound to inquire. But were 
they not ? They were not legally bound to inquire, but they 
were morally bound not to reject from their minds the evi- 
dence which was forced upon it. The mere words and out- 
ward acts do not constitute that upon which the morality of 
man's intercourse with his fellow-men deoends. 



472 



POLITICAL ETHICS. 



Perhaps it might yet be asked, How ought we to act under 
a tyrannical government ? Suppose, what has happened re- 
peatedly, an unjust government imposes so heavy a tax upon 
the necessities of life, for instance upon salt and flour, that the 
poor man cannot maintain his family ; or suppose a country 
is conquered, a new government imposed upon it, and exor- 
bitant impost taxes levied, as was the case during the con- 
tinental system under Napoleon — a period which might be 
called the classical age of smuggling, on account of its extent, 
refined ingenuity, and daring. In this case the question be- 
comes, as was already said, wholly a question of obedience to 
the laws, of which the more important must be obeyed before 
the less important. Nor do unlawful demands, be they un- 
lawful in themselves and demanded by lawful authority, or 
demands by unlawful authority, carry with them the obliga- 
tion of laws. Since it is a duty to avoid giving opportunity 
for disobedience to law, or to challenge it by enacting laws 
which will, according to the nature of men, infallibly lead to 
crime, governments are morally bound to avoid legislation 
which cannot, as society is constituted, but lead to smuggling 
— a general school of lawlessness. These are among the 
reasons why excises and import taxes are so much to be 
dreaded. 



END OF VOL. L 



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